BY: Colin Wood (USAKS)
UPDATE: October 25, 2016
In 2015, the Kansas Legislature amended K.S.A. 8-1001 [new subsection (t)] to include what it believed was a fix to a lingering controversy in our state courts concerning the availability of search warrants to law enforcement officers seeking blood evidence from DUI suspects that had earlier refused a breath test. In limbo for a couple of years now have been all of those pending, pre-2015-amendment, DUI cases involving either the use of, or the threat of, a blood search warrant.
Last Friday, the Kansas Supreme Court in this Webb case (and in its companion but unpublished case, State v. William Hoeffner) settled that statutory dispute. The Court held, though not unanimously, that 2008 K.S.A. 8-1001 sufficiently allowed for (or at least did not prevent) blood search warrants. Justices Johnson and Luckert dissented. They would have reversed both the trial court and the Court of Appeals to hold that the 2008 legislative amendments had at best left the DUI statute ambiguous as to the availability of warrants; and, anyway, the Legislature was required to have affirmatively and statutorily provided law enforcement with search warrant authority, something that it had not done.
Interestingly, the wording of the current 2015 K.S.A. 8-1001(t) does not appear to have fixed the dissenting justices’ latter concern either. But, as a practical matter, that will make no difference to future DUI enforcement unless and until 2 other justices change their minds in some future case contesting the current 2015 language.
safer community: 1
Dangerous drunk drivers: 0
The Kansas Supreme Court has upheld the issuance of search warrants to draw blood in DUI refusals. Case summary to follow. See State v. Webb, #109,634 (published) and State v. Hoeffner, #110,323 (unpublished).
BY: Colin Wood (USAKS)
UPDATE: October 18, 2016
While in a convenience store parking lot an officer was approached by a citizen who suggested that the officer check on the driver of a van that had been parked on the lot with the motor running for about an hour. The driver was slumped over the steering wheel. The officer parked his patrol car across the parking lot from the van because “he did not want to put the driver in any position where he would not be able to freely leave.” The officer then approached the van’s driver door, knocked on the window, and awoke David Hanke. Apparently startled, Hanke “quickly sat up and opened the door into [the officer].” The officer checked on Hanke and asked if Hanke had identification. Hanke gave the officer his driver’s license and after looking at it the officer returned it to Hanke. The officer quickly became suspicious that Hanke was impaired and asked to search the van. Hanke agreed. In the van the officer found meth and marijuana, Hanke was charged, and he later asked the trial court to suppress the evidence.
At the suppression hearing everyone agreed that the officer had a duty and the authority to check on Hanke under the police “community caretaking function” aka “public safety check” aka “check the welfare.” However, Hanke argued that after the officer found no immediate safety issue or medical condition for which Hanke needed assistance, the officer persisted and turned the encounter into an illegal detention by demanding identification, requesting to search the van, and not telling Hanke that he had the right to say no. The State claimed the event was simply a consensual encounter. After a hearing, the trial judged denied the suppression motion and Hanke appealed.
A split appellate panel has recently agreed with the trial judge. The panel’s majority held that the entire encounter between the officer and Hanke had lasted only about 3 minutes and had been fully consensual. “Voluntary encounters are not considered seizures and do not trigger the protections of the Fourth Amendment.” Notably, the encounter occurred in a public place; the officer was alone; there was no show of authority by the officer in voice or action; the officer had parked his patrol car away from the van so that Hanke could have left had he wished; and, the officer had requested, but did not retain, Hanke’s identification.
After holding the encounter to have been consensual, the majority reviewed the van search finding that: 1) the officer was not required to tell Hanke that he had the right to refuse a consent to search; 2) Hanke’s consent was voluntary; and, 3) the scope of Hanke’s consent included all of the passenger compartment where the evidence was found.
All three judges on the panel had agreed the initial encounter between the officer and Hanke was lawful. However, the dissenting judge did not believe the encounter continued that way. He would have held that the event became unlawful after Hanke opened his van door and accidently struck the officer with the door. The dissenter said that there was from the beginning an “adversarial complexion” to the encounter that “only intensified” with the door strike. “From that point, a citizen might readily conclude the officer would be weighing what steps to take, including issuing a citation or even making an arrest for the incident . . . [further] [a]though [the officer] held the license only briefly, he confirmed Hanke’s identity and effectively seized him during that time. By then, a reasonable person would have viewed the circumstances as something less than voluntary . . . The district court and the majority seem to lose sight of the distinction and backhandedly find a constitutionally acceptable consent and search precisely because Hanke wasn’t physically threatened or actually manhandled . . . In the end, the protections of the Fourth Amendment cannot be so inert they require a display of overwhelming numbers or overt force by government agents to be activated.”
So, beyond the dissent’s somewhat enhanced view of the circumstances surrounding the event, the main take-away from this case is the intentional placement of the patrol car away from the van. The officer clearly understood the importance in consensual encounters to not block a reasonable path-to-leave for both the citizen and their vehicle.Lastly, probably due to the split vote on the panel, Hanke has petitioned the Kansas Supreme Court for review of the majority’s holding. But, under these facts it is hard to believe that the ruling will be disturbed
BY: Colin Wood (USAKS)
UPDATE: August 8, 2016
Jonathan Wissing was enjoying some fresh air on his moped last year when a nearby police officer recognized him and knew of a few outstanding warrants. When stopped Wissing was seen looking in his wallet and placing it in his pocket. He was arrested and his hands were cuffed in front. Upon Wissing’s request, the officer agreed to allow Wissing to go inside his nearby house to tell his mother that he would not be home for dinner…..or breakfast or lunch…. for the foreseeable future. With the officer along, Wissing told Mom of the warrant problem while at the same time taking his wallet out of his pocket and placing it on a dresser. The officer immediately picked up the wallet, asked Wissing if his ID was in it, opened the wallet and found a small baggie of methamphetamine. Wissing was charged with possession of meth and he asked that the wallet search be suppressed. He argued that because the search-incident-to-arrest exception (SIA) is grounded in officer safety and preserving evidence of the crime of arrest this search was illegal. Since he was handcuffed the officer’s safety was never in jeopardy, and the billfold did not contain any evidence connected to the arrest warrants. The trial court agreed holding that with Wissing handcuffed there was no possibility that he could have reached his wallet. The State appealed. A panel of the Kansas Court of Appeals recently reversed the trial court.
An SIA is a long-recognized exception to the warrant rule “conducted for the twin purposes of finding weapons the arrestee might use or evidence the arrestee might conceal or destroy.” It begins with a lawful custodial arrest and proceeds to a search of the arrestee and the area within the arrestee’s immediate control. The search is to be done “roughly contemporaneous[ly]” with the arrest.
Importantly, the United States Supreme Court just a few months ago in Birchfield v. North Dakota reaffirmed that an SIA is “strictly categorical and does not depend upon an evaluation of the threat to officer safety or the threat of evidence loss in a particular case. . . . [A] search incident to arrest requires no additional justification. It is the fact of the lawful arrest which establishes the authority to search . . . “
The Kansas appeals panel then went on to say that “[a]n officer need not presume that an arrestee who appears to be separating himself from an object will not momentarily change his mind and grab it again.” At the end of their opinion, the judges asked themselves “was the area in question, at the time it was searched, conceivably accessible to the arrestee—assuming that he was neither an acrobat nor a Houdini? . . . The answer to that question here is unquestionably yes.”
BY: Colin Wood (USAKS)
UPDATE: February 4, 2016
For 4th Amendment purposes, parolees and probationers have a lesser expectation of privacy than do persons not under post-conviction control. Of those, parolees have an even lesser expectation of privacy than do probationers. At least that was the way it was in Kansas before last week.
In 2012 the Legislature amended the statutes regulating searches of parolees (K.S.A. 22-3717) and probationers (K.S.A. 21-6607). In March, 2013, Tony Toliver signed a Parole Agreement with KDOC that included his agreement to suspicionless searches by KDOC staff of his person, residence, and any other property under his control. Seven months later, two KDOC parole officers (along with three S.O. detectives) went to Toliver’s residence for a KDOR suspicionless search. Some marijuana was found in the residence and Toliver was charged. The district court later denied Toliver’s motion to suppress and he appealed.
Last week, a split (2-1) Court of Appeals panel held that the 2012 changes to K.S.A. 22-3712(k) restricted suspicionless searches to only the parolee’s person. Thus, there is no authority in the current version of K.S.A. 22-3717(k) for suspicionless searches of a parolee’s residence or other property despite the terms agreed to by the parolee in a separate KDOC Parole Agreement. The dissenting judge wrote, “Toliver knew and had expressly agreed that one condition of his parole was that his residence could be searched by a parole officer…..[t]he relevant statute does not restrict that search condition….[t]his statute does not attempt to designate the object of the search.” The dissenter went on, “[t]o find that the legislature at the same time amended the parolee statute to limit parolee searches to only their ‘persons,’ thus granting parolees a greater expectation of privacy than probationers, is unreasonable. Our court is to construe statutes ‘to avoid unreasonable and absurd results.’”So, if you are requested to assist in a future parolee search event, you may wish to first review 2012 K.S.A. 22-3717(k), and factor in this case. The state has not yet requested review of the decision by the Kansas Supreme Court. It may in the end take a legislative fix.
The Toliver case discussed only 22-3717(k)(2). I received a question this morning whether the same reasoning in Toliver would apply to 22-3717(k)(3). K.S.A. 22-3717(k) states:
(k) (1) Parolees and persons on postrelease supervision shall be assigned, upon release, to the appropriate level of supervision pursuant to the criteria established by the secretary of corrections.
(2) Parolees and persons on postrelease supervision are, and shall agree in writing to be, subject to search or seizure by a parole officer or a department of corrections enforcement, apprehension and investigation officer, at any time of the day or night, with or without a search warrant and with or without cause. Nothing in this subsection shall be construed to authorize such officers to conduct arbitrary or capricious searches or searches for the sole purpose of harassment.
(3) Parolees and persons on postrelease supervision are, and shall agree in writing to be, subject to search or seizure by any law enforcement officer based on reasonable suspicion of the person violating conditions of parole or postrelease supervision or reasonable suspicion of criminal activity. Any law enforcement officer who conducts such a search shall submit a written report to the appropriate parole officer no later than the close of the next business day after such search. The written report shall include the facts leading to such search, the scope of such search and any findings resulting from such search.
You will notice that the main search-authority differences between the sections (2) and (3) are: in (2) it is KDOR doing the search with or without cause; and in (3) it is any LEO doing the search with reasonable suspicion. However, the object of the search (a person, or place, or thing) remains undefined as “subject to search or seizure.” So, in Toliver the panel held that section (2) allows only “person” searches and not residences or other property. Since the “subject to search or seizure” phrase is also in section (3), it is arguable that section (3) allows only “person” searches and not residences or other property.Many of you do these searches under section (3). You may wish to discuss this section (3) issue with your local county or district attorney’s office if you intend under this statute to search more than a parolee’s person
BY: Colin Wood (USAKS)
UPDATE: November 24, 2015
Marcus Gray probably did not intend to see the inside of a county jail that mild fall evening. But, on November 10, 2013 fate intervened in his life.
Marcus was stopped for a traffic violation (mistake #1), and almost immediately the officer detected the odors of both marijuana and alcohol (mistake #2). In due course, the officer asked for a driver’s license. Marcus had one, but it had been suspended so Marcus gave the officer a false name, address and social security number (mistake #3). Upon close checking, the charade was uncovered and arrest was imminent. But, as the officer attempted to handcuff him, Marcus decided that he could probably outrun the officer (mistake #4). Marcus ultimately made it 20 feet before being apprehended. A sad 20 feet! What does that say for the quality of modern criminality when a “chase” now ends in the length of a 1973 Lincoln Town Car with a continental package? But, the athletic prowess of today’s criminals is for another day. . .
Returning to Marcus, his troubles were not over. Yes, he was holdin’. Marijuana and cocaine (mistake #5). And, then there were those pesky out-of-state warrants (mistake #6). Six serious errors in judgment and all within the time it takes to order a nice meal in a secluded wine-country bistro. Marcus was convicted and appealed.
His appeal before the Kansas Court of Appeals revolved around two topics: racial profiling in the stop, and the interference with law enforcement statute. The profiling issue discussed statutory and constitutional protections but boiled down to racial profiling is illegal and can suppress a car stop. But, in this particular car stop, there was no profiling.
The discussion about the “interference with law enforcement” charge, K.S.A. 21-5904, is the point of this summary. (for those long in tooth, it used to be called “obstructing legal process or official duty”) Marcus was charged with two counts of felony interference with law enforcement: one for giving a false name, and one for running from the officers (albeit only 20’). “Whether interference with law enforcement is a felony or misdemeanor depends on whether the officer was investigating a felony or misdemeanor offense at the time of the interference . . . [but, here] there is no evidence to support the State’s assertion that the slight and moderate odors of alcohol and drugs led [the officer] to believe he was investigating potential felony crimes.” So, all of the convictions were upheld but the two felony interference convictions were reduced to misdemeanors.Two teaching points here: 1) that charging felony interference v. misdemeanor interference hinges on what category of crime the officer believed was being investigated at the time of the interference; and, 2) that the State is required to put on evidence in support of the officer’s reasonable belief.
One winter day in late 2013, Jessica caught a ride with a friend to the Community Corrections office. She left in her friend’s car 2 purses and a shopping bag from the Buckle. While Jessica was at her appointment, the friend was stopped by an officer because another law enforcement agency wanted to speak with Jessica’s friend about an identity theft investigation. While speaking with the friend, the detaining officer noticed the two purses and multiple Buckle bags (one Jessica’s, the others the friend’s). Though the district court later wondered why, the officer chose to remove Jessica’s purses from the friend’s car, and then he called Jessica at the Corrections office. Jessica described her purses and said that her Buckle bag was the one with a wood sander in it. During the telephone conversation, the officer did not request consent from Jessica to search any of her belongings. The officer returned to the friend’s car, removed what he believed to be Jessica’s Buckle bag, looked inside of it to confirm the wood sander and while looking he saw a meth pipe. Based on that information, the officer requested from community corrections officers permission to search Jessica’s other bags and found more methamphetamine. (Though the Court does not say so, it is assumed here that Jessica was on some sort of supervision and that community corrections had some authority concerning any search involving her). Upon later arresting Jessica at the Community Corrections office, it was found that Jessica had additional meth on her person. (In her defense, Community Corrections appointments are very stressful, and having medication handy is seen by some as insightful).
Jessica quickly found herself on the wrong end of a state complaint for possession of methamphetamine with intent to sell and a few other charges. She complained to the trial court that the officer searched the Buckle bag without her consent and without a warrant. Following a suppression hearing, the trial judge agreed. The State appealed. The State recently lost 2-1 before a panel of the Court of Appeals.
First, the panel held that even though Jessica was not in the car, she retained a reasonable expectation of privacy in the bags and had standing to contest the search. Second, consent to search the bags was not given by Jessica (or by the friend then in authority and control of the car). But, the State argued that by their telephone conversation the officer could have reasonably understood Jessica as having given her “implied consent” to search the Buckle bag because the circumstances made it necessary to identify amongst the multiple bags the one with the wood sander in it. And, to find the wood sander a person would, of course, have to look inside the bag. Great argument, but no cigar. The majority reminded us that “consent by implication . . . is contrary to established law.” The general rule is that an individual’s consent to search must be “unequivocal and specific” and “freely and intelligently given.”
Lastly, the State argued that even if the search of the Buckle bag (that then led to discovery of all of the other evidence) was invalid, the officer’s actions constituted a reasonable, good-faith attempt to ensure that the bag belonged to Jessica and that suppression of the evidence would serve no deterrent purpose. (Remember “that the exclusionary rule is a judicially created remedy which exists to prevent the use of unconstitutionally obtained evidence in a criminal proceeding against the subject of the illegal search. The rule applies when it would act as a deterrent to prevent law enforcement officers from violating citizens’ constitutional rights”). Sorry, the panel majority said, but good faith does not work here.
“There are two recognized exceptions to the exclusionary rule based on a law enforcement officer’s good-faith conduct. First, the exclusionary rule should not be applied to bar the use of evidence obtained by officers acting in reasonable reliance on a search warrant issued by a detached and neutral magistrate but ultimately found to be invalid. Second, the exclusionary rule should not be applied to bar the use of evidence obtained by officers acting in reasonable reliance on a statute which is later found to be unconstitutional.” Neither of those circumstances (invalid search warrant or unconstitutional statute) was present here, and the panel applied the rule suppressing all of the evidence against Jessica.
The one dissenting judge would have held that the officer acted reasonably under the circumstances, and that the search itself was reasonable. And, with that glimmer of hope from that dissenting judge’s opinion, the State sought review by the Kansas Supreme Court. In an unusually quick response of only days instead of months, not only did the Supreme Court deny the State’s request to review the case anew, but it ordered this originally unpublished opinion to be published. That usually means the Supreme Court wishes you to be aware of the holding.
BY: Colin Wood (USAKS)
UPDATE: June 16, 2015
You may remember this case from a 2013 summary. What I reported to you then has now changed….sort of.
I don’t usually identify agencies, but for clarity of participants it will be necessary this time. Prairie Village PD was investigating Carl Vrabel for selling hashish. PVPD had set up a buy from Carl inside nearby Leawood and, as had been the “normal protocol” between the agencies for a long time, called a Leawood PD Captain to notify him of the impending buy so that Leawood PD could decide whether it wished to assist and to keep marked units out of the area. Pretty standard stuff between agencies. Carl showed up, sold his drugs, and was later arrested. Offended, Carl asked the district court to suppress the evidence gained in Leawood because PVPD and Leawood had failed to follow the jurisdiction statute. In other words, Leawood was to have requested PVPD’s assistance in investigating a crime in Leawood, not simply PVPD telling Leawood they were coming into town. After review of the (2014) mutual assistance/jurisdiction statute, K.S.A. 22-2401(a)(2), the trial judge agreed with Carl and suppressed the evidence. The State appealed and in 2013 a panel of the Kansas Court of Appeals reversed holding that there was an “implied agreement” between PVPD and Leawood PD that was sufficient for statutory purposes. Carl simply could not believe it. He asked the Kansas Supreme Court to review the Court of Appeals decision.
Recently, the Kansas Supreme Court held that the jurisdiction statute required Leawood PD to have requested the assistance of PVPD for PVPD to have had police powers in Leawood. The Kansas Legislature has not granted statewide jurisdiction to all law enforcement officers to maintain “local control by cities and counties, protecting them from unwanted intrusion by neighboring law enforcement officers over whom the invaded territory would have no control.” In other words, the implied agreement or “normal protocol” between PVPD and LPD was insufficient to have granted law enforcement powers to the PVPD officers in their investigation of Carl in Leawood.
But, interestingly, Carl still lost his appeal. Why? First, the evidence gained from Carl by PVPD was not through a search or a seizure. Therefore the 4th Amendment and the exclusionary rule did not apply. Since the statutory limitations on the jurisdiction of city officers does not create an individual right in Carl, Carl should not benefit from a statutory mistake by the agencies. “…[S]uppression of evidence obtained during a city officer’s unauthorized exercise of police power outside of the officer’s employing city—other than a search or seizure—will generally not be required.” So, the State lost on the statutory issue but Carl lost overall because the evidence against him was not suppressed. The case has since gone back to the trial judge for further prosecution.
With that said and before you think as a practical matter an “implied agreement” between agencies is still OK, the Court warned: “But before concluding, a word of caution might be in order. Like our sister State to the West: “’[T]his court cannot sanction willful and recurrent violations of the law’ and . . . future violations ‘may trigger application of the [exclusionary] rule.”
So, if dealing with a case outside of your jurisdiction, re-read the mutual assistance/jurisdiction statute, and closely follow its terms.
BY: Colin Wood (USAKS)
UPDATE: April 27, 2015
The U.S. Supreme Court has weighed into the issue of when and under what circumstances a law enforcement officer must release a car and driver stopped for a traffic violation. The 8th Circuit Court of Appeals has for some years held that it was reasonable to hold a car for a few extra minutes after the car stop would usually have ended (hold without consent and without reasonable suspicion of a second crime) because a few minutes was a “de minimus” (no big deal) interference with the occupants’ 4th Amendment protections. Last Tuesday, the Supreme Court disagreed.
A Nebraska dog handler stopped driver Rodriguez and a passenger for a traffic violation. After issuing a warning ticket for the traffic offense, Rodriguez declined a request to stay to allow the officer to run the officer’s drug K-9 around the car. Believing he had reasonable suspicion of a second crime (drugs), the officer held Rodriguez for about 8 additional minutes for the dog sniff. Following the dog’s alert, a large bag of methamphetamine was located and Rodriguez was charged in federal court. At a suppression hearing, the lower federal court held that the officer did not have reasonable suspicion to hold the car. However, the lower court said, 8th Circuit law allowed an officer without reasonable suspicion of a second crime to hold a car for a few extra minutes. So, Rodriguez lost the suppression hearing, was convicted and appealed to whom? The 8th Circuit. The 8th Circuit of course reaffirmed that holding a driver for a few extra minutes for a dog sniff (or really any other decent reason) did not hurt Rodriguez.
Knowing other federal circuit courts around the county, including our own 10th Circuit, did not allow this “de minimus” reasoning, Rodriguez asked the Supreme Court to review his case. It did, and the Supreme Court in a 6-3 vote said NO to the 8th Circuit’s “de minimus” rule. The Court did, however, send the case back for a review of the earlier reasonable suspicion analysis because despite their general holding in the case some of the justices thought the officer did have reasonable suspicion of a second crime at the time the officer decided to hold the car for the sniff.
The Court also reaffirmed that an officer may as part of the stop: order the occupants from the car, request a driver’s license, the vehicle registration, proof of insurance and run a warrant check; the officer may also ask questions not related to the original reason for the car stop so long as those unrelated questions do not prolong the stop; remember one Kansas caveat on asking unrelated questions: Kansas state courts do not allow an officer during a car stop (without reasonable suspicion of a second crime) to request consent to search a vehicle.
Though this case looks like a dog case, it is not. The Supreme Court simply said when the car stop is over, it is over (when an officer has completed all “traffic-related” tasks); and, the only way for the car and occupants to stay longer for any reason is 1) with the driver’s consent; or, 2) the officer has developed reasonable suspicion of a second crime. Period. End of story.
Bottom line, this case has little impact on Kansas law enforcement. The Court’s newest holding has been the law in Kansas state and federal courts for a long time.
BY: Colin Wood (USAKS)
UPDATE: March 17, 2015
In 2009, an officer stopped Molitor and subsequently conducted a DUI investigation. During the testing, the officer used his training in horizontal gaze nystagmus (HGN), and that helped in the reasonable suspicion to request a PBT. Molitor registered over the limit on both the PBT and the later Intoxilyzer 8000. Molitor was charged and convicted of DUI in municipal court and appealed to the district court. In district court, Molitor requested suppression of the PBT and the later intoxilyzer test because the officer had used HGN in his analysis of whether Molitor was driving under the influence. Molitor argued that the science behind HGN has never been accepted in Kansas courts. The district court held that even though HGN cannot be used at trial, it can be used during pretrial proceedings in support of an officer’s reasonable suspicion for the PBT. Molitor appealed to the Kansas Court of Appeals, but it agreed with the district court.
A few weeks ago, the Kansas Supreme Court reversed both lower courts, holding that the science underpinning HGN testing has never been vetted through and accepted by the Kansas court system; and, until that happens HGN testing cannot be used for any court proceedings for any reason, on the street in DUI testing, in pretrial hearings, or in a trial. That is a big change for Kansas law enforcement.
Then, on a second issue in the case, the Supreme Court split 4-3 on whether without the HGN testing the officer would still have had reasonable suspicion of DUI to request the PBT. Here are the remaining facts important to that determination: 1) when stopping, Molitor drove into the curb and then stopped his vehicle with the right front tire halfway up the curb; 2) Molitor admitted to alcohol consumption; 3) there was a strong odor of alcohol on Molitor; 4) Molitor had watery and bloodshot eyes; 5) Molitor lost his balance during the instruction phase of the walk-and-turn SFST, and then he put his foot down on the one-leg-stand SFST; but, 6) Molitor ultimately passed both SFSTs with only 1 “clue” in each; and, 7) Molitor had spoken without slurring his words, and he had produced his identification without difficulty.
The Court’s majority held that without the HGN there was not reasonable suspicion to request the PBT. First, the majority simply discarded the “loss of balance” clue in the first SFST, and discarded the “putting his foot down” clue in the second SFST because Molitor had ultimately passed each SFST. The majority said that the Court of Appeals should not have “deviated from the criteria and scoring of the NHTSA’s standardized testing model to glean reasonable suspicion of DUI from a successful completion of the admissible SFSTs.” In other words, the ultimate passing of the SFST immunizes from further use any “clues” observed by an officer during the SFST. So, in the end, the evidence of Molitor’s intoxication when weighed against the evidence of his not being intoxicated did not rise to reasonable suspicion.
The three dissenting justices pointed out that “reasonable suspicion is a less demanding standard than probable cause….” and “we review reasonable suspicion determinations by considering the totality of the circumstances---as viewed by a reasonable law enforcement officer.” The dissenters believed that for the first time in Kansas the majority opinion has established “two classes of evidence and assigns greater weight to the standardized field sobriety tests, i.e., the walk-and-turn and one-leg stand tests. In its view [the majority of the Court], the officer’s ‘subjective observations’ that Molitor was intoxicated, i.e., the perceived strength of the alcohol odor or the driver’s bloodshot and watery eyes, as a matter of law are ‘offset’ by the ‘objective indications’ that he was not, i.e., field sobriety tests in which Molitor did not exhibit enough indicators of intoxication to predict from the tests that he was unlawfully impaired.”
A big case for two reasons: HGN cannot [for the foreseeable future] be used in Kansas for any reason; and, reasonable suspicion of DUI just got quite a bit harder to show in Kansas.
I cannot argue with the HGN holding. But, I totally agree with the dissenting opinion on there having been reasonable suspicion of DUI.
Some officers may still wish to employ HGN in the field, but that may be an individual departmental and/or prosecutorial office decision. Just be aware that the defense bar reads these cases too and will most certainly argue at least two things if HGN is used in a Kansas arrest case: 1) that the officer employing HGN was unduly influenced by the HGN results or that the officer’s reasonable suspicion analysis was tainted by the HGN results; and, 2) that the officer’s use of HGN testing unnecessarily, unreasonably and measurably extended the duration of the temporary detention resulting in an illegal detention.
But, assuming that you are willing to accept the individual defense of those arguments, then I have to agree with those that say HGN can still be used in the field. And, assuming that there are no HGN science cases in the trial/appellate pipeline, then it will actually be necessary to continue to use HGN in the field so that there can be HGN-science-reviewable DUI investigations.
BY: Colin Wood (USAKS)
UPDATE: December 15, 2014
Some weeks ago I alerted you to a “mistake of law” case being argued before the U.S. Supreme Court. The Court today held 8-1 that an officer’s reasonable “mistake of law,” like a reasonable “mistake of fact,” does not affect reasonable suspicion to temporarily detain a person. That is a big change in our law.
A “mistake of fact” example would be: officers at the Jones’ house are told by Jones family members that a car that had left the house as officers arrived contained John Jones who is wanted for a recent shooting. The officers tell you what the family had told them. You later see the car in question and stop it looking for John Jones but upon approach you in fact find brother Fred Jones and an overwhelming odor of marijuana. John is not in the car. But, based upon the odor you search the car and find 4,000# of marijuana. Fred is arrested but he later argues in court that you made a “mistake of fact”: you “seized” Fred because you thought fugitive John Jones was in the car. He wasn’t and the government should not benefit from your mistake. Assuming all that is true, then yes, you made a “mistake of fact.” But, the Constitution has always provided for reasonable “mistakes of fact” by officers. So, assuming a court agrees that your “mistake of fact” concerning Fred was a reasonable one, then the stop would be good and Fred would be headed for the big house.
There was no “mistake of fact” in today’s case. Instead, Nicholas Brady Heien argued that a “mistake of law” was his downfall. And, a “mistake of law” has always been fatal to reasonable suspicion in both state and federal courts.
A few years ago, Nick was in a vehicle with a brake light out. An officer (understanding that state law required more than one working brake light) stopped the car, wrote the driver a warning ticket, and during the event became suspicious. Nick, a passenger and owner of the car, later consented to a search and cocaine was found. Nick was arrested and filed a suppression motion arguing that North Carolina law only required one brake light; the State countered that in reading the whole statute it was reasonable to understand that more than one brake light was required. The trial court denied Nick’s suppression motion, and he was convicted. On appeal, the NC Court of Appeals agreed with Nick that the officer had unreasonably misread the statute. Upon further review, the NC Supreme Court held that the state statute was at best ambiguous, but even if the officer had mistakenly read the law, his mistake was a reasonable one and it should not affect the stop. Nick asked the U.S. Supreme Court to weigh in on the controversy, and they did. Today, that Court changed the law in Kansas and almost every other state. A reasonable mistake of law is not fatal to an officer’s reasonable suspicion of a crime. Thanks Nick!
But, don’t read more into this than there is. Courts are to only look at “objectively reasonable mistakes,” not subjective misunderstandings by a particular officer. As the majority said, “Thus, an officer can gain no Fourth Amendment advantage through a sloppy study of the laws he is duty-bound to enforce.” And, remember that a particular officer’s good faith belief will not help at all. Justice Kagan wrote separately to make sure we understood what she understood to be the narrowness of the opinion:
It will not save a stop where “the officer was unaware of or untrained in the law.” And, it will not save a stop where the government argues “…… an officer’s reliance on ‘an incorrect memo or training program from the police department.’ “ Instead, the new “…..test is satisfied when the law at issue is ‘so doubtful in construction’ that a reasonable judge could agree with the officer’s view.”
BY: Colin Wood (USAKS)
UPDATE: December 8, 2014
Instead of sitting in line with the other
common motorists at a stop light, Cameron Howard
had the great idea of bypassing the stop light
completely by driving through the adjacent
parking lot. The trouble was his action was in
violation of a city ordinance, and there
happened to be a still-interested 20 year
veteran of the police department watching
Cameron. A car stop followed. Upon approach, the
officer saw in the cup holder “… a plastic
baggie that had a corner ripped out …” It was
then discovered that both Cameron and his female
passenger were wanted on warrants. So, Cameron
was arrested, handcuffed and placed into a
patrol car. The “noticeably pregnant” female
passenger was not handcuffed and was allowed to
sit on a nearby curb away from Cameron’s car.
Believing upon his training and experience that
the “plastic baggie that had a corner ripped
out” established probable cause that drugs were
in the car, the officer searched the car, found
a loaded AK-47 but no drugs. Because of an
previous but unfortunate burglary conviction in
Missouri, Cameron was charged with criminal
possession of the firearm.
Among other things, Cameron asked the trial court to suppress the car search because “a plastic baggie that had a corner ripped out” standing alone surely does not amount to probable cause. The trial judge refused to suppress the search, Cameron was convicted and he appealed. A Kansas Court of Appeals panel sided 3-0 with the trial judge. Two teaching points come from their opinion:
Probable Cause +Exigent Circumstances + Automobile Exception: the big rule in a search is to get a search warrant. However, there are exceptions. One is having probable cause to believe that evidence of a crime is present in a certain location, plus the existence of exigent circumstances (no time to get a warrant). A sub-class of “exigent circumstances” is known as the automobile exception. A motor vehicle’s “ready mobility” is, standing alone, an exigency. “….the fact that the driver of the vehicle and any passengers are no longer in the vehicle at the time of the [warrantless] search does not make the car immobile so as to eliminate the application of the automobile exception.” So, if the officer in this case had probable cause, the Court readily agreed that exigent circumstances were present based upon having a car involved. But, was there probable cause?
Yes, the Court said. The 20 year veteran officer testified, when asked about the plastic baggie with a corner ripped out, “[m]y 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 sever times to keep it secured.” Now, remember that “[c]ourts have found an officer observing an intact plastic baggie, on its own, can’t justify a warrantless search.” But, and acknowledging this case is a close call because there are only two factors underpinning the probable cause: the torn corner and the officer’s training and experience, the panel held there was probable cause to search Cameron’s car. “We find it especially important in our analysis that torn baggies do not have a common legal purpose.” “And here the conclusions [that the officer] made were based on [his] 20 years of training and experience.”
Great case. But, I would not make more of it than it is. And, if faced with testifying in a similar case, explain in detail your training, experience and what made the particular object suspicious to you.
BY: Colin Wood (USAKS)
UPDATE: October 20, 2014
A panel of the Kansas Court of Appeals has taken to task some of the “Reid Interview” techniques. If you use the following techniques in tandem: 1) “making false claims [to the suspect] of incriminating evidence [already gathered];” 2) “[the] deliberate minimization of the legal consequences of admitting incriminating conduct,” then you should probably read this opinion.
Fernandez was suspected of agg indecent liberties with a girlfriend’s daughter. When contacted, he agreed to ride with police to the station and be interviewed. Everyone agrees that it was a 2 hour voluntary interview during which Fernandez was told he could leave at any time and was allowed to make phone calls on his cell phone. [However, as a side note to this case, the panel did again mention that there is an open question in Kansas courts whether or not the giving of the Miranda warning during an consensual interview could make a reasonable person believe that they were in custody and therefore not free to leave].
Fernandez’s first language was Spanish but he had spoken conversational English for 30 years. It would be learned later that he also “functioned intellectually in the ‘low average’ range and likely had some form of learning disability….” As a translator, officers used a bilingual, non-court-certified, non-trained-in-real-time-translation, county probation officer who had assisted them in the past. The interview was videotaped. During the interview, the interviewing officer “falsely told Fernandez that a doctor had found Fernandez’ skin cells on the [victim’s] vagina. [The officer] then informed Fernandez the medical examination of [the victim] meant he had had touched her for a minute or two. [The officer] began insisting that he knew Fernandez had inappropriately touched [the victim]. But he also knew Fernandez was not a bad person and ‘what happened, in part, was a mistake.’ [The officer] then told Fernandez that if he had the intention of touching [the victim] ‘just for a second….that’s okay and we can deal with that because you didn’t do more’.” During translation, the translator used a Spanish word that conveyed the meaning that “the [officer] would negotiate some arrangement with Fernandez if he admitted touching [the victim].” The translator was also later found to have “failed to translate fully or entirely accurately questions and answers, inhibiting precise communication between [the officer] and Fernandez.” Fernandez was charged and the State wanted to use some of his interview statements at trial. Fernandez asked that his statements be suppressed as having been made involuntarily because of the way the police conducted the interview.
In assessing the voluntariness of a statement, a court is to examine the totality of the circumstances, including but not limited to: 1) the accused’s mental condition; 2) the duration and manner of the interrogation; 3) the ability of the accused to request to communicate with the outside world; 4) the accused’s age, intellect, and background; 5) the fairness of the officers in conducting the interrogation; and, 6) the accused’s fluency with the English language. “A government agent may induce an involuntary statement through improper threats of harm, promises of benefit, a combination of the two, or other undue influence over the suspect…..The collective effect of the circumstances drives the assessment.” Here, the trial court suppressed the statements, and the Court of Appeals agreed.
First, even though the interview was voluntary, the use of an untrained, uncertified translator was a mistake because Fernandez could have misunderstood. Second, under these circumstances the judges on the panel did not like the interview technique: “[the officer’s] interrogation approach effectively informed Fernandez both that the police had irrefutable scientific evidence that he had touched [the victim’s] vagina and that if he had done so only for a second his actions were ‘okay’ and could be dealt with. The underlying message to Fernandez was this: We have overwhelming evidence against you, but if you tell us you did it just briefly, nothing much will happen to you. [The officer] maneuvered Fernandez into a situation in which yielding to the suggestion would seem to carry a material benefit, though quite the reverse was true…..In that situation, a suspect may no longer be especially concerned about falsity of the statement…..”
“The manner of the interrogation [based probably on the Reid Interview Techniques) produced statements from Fernandez that owed more to [the officer’s] false representations of evidence and his concerted efforts to minimize the consequences of the admissions he sought than to an exercise of a free, uncoerced will. The communication gap resulting from the poor translation and Fernandez’ below average intellect only enhanced the pernicious effects of those tactics.”
The case can be seen at www.kscourts.org; “Recent and Published Opinions” under Featured Links; Court of Appeals; September 26, 2014.
BY: Colin Wood (USAKS)
UPDATE: September, 2014
A landlord was owed some rent money and went to the deadbeat’s apartment. After knocking the landlord entered the apartment and found a man unknown to the landlord passed out on a couch. When the landlord could not awaken the man, the landlord called 911. A total of four officers initially responded to what the dispatcher called a “trespass problem.” The officers entered the apartment, one officer later testifying, “[w]e weren’t sure what [the man’s] health condition was, and we made entry.” The man eventually awoke, identified himself as Justin Neighbors, and officers were able to confirm that he had permission to be in the apartment. During the event, a narcotics investigator overheard the radio traffic, recognized the names involved, and drove to the apartment. One thing led to another between the investigator and Justin, leading to a search of Justin, drugs being found, and Justin going to jail.
Justin asked the district court to suppress the drug evidence because the officers had overstayed their welcome at the apartment. The district judge agreed with Justin, the Court of Appeals disagreed with Justin, and the Kansas Supreme Court finally sided with Justin. The Supreme Court held that the initial entry into the apartment was OK, but once the officers determined the emergency no longer existed, the officers should have picked up their marbles and gone home. Since the drug evidence was located after the point in time when the officers should have left the apartment, the evidence was illegally seized.
First, remember that a dwelling is the place most protected from government eyes. A search or arrest warrant founded upon probable cause is almost always required to enter a home. However, there are a few exceptions to that general rule: one exception is the “emergency aid doctrine.” Courts recognize that the police are called upon to perform functions other than criminal investigation. (On the highway, this non-criminal authority is referred to as the “community caretaking function” which can justify the temporary detention of a car, a driver and the occupants).
It is reasonable under the Fourth Amendment for the police when “aiding an occupant who is seriously injured or is imminently threatened with injury” to enter a home. But, such an entry has to be “strictly circumscribed” to the “exigencies which justified the first entry:” in other words, to help someone in danger. Any search of a home associated with that help must only be for the person or persons that are in trouble. Chances are pretty good that there are no “people in danger” inside of desk drawers or the pockets of clothing in a hallway closet. But, that said, should officers be lawfully present inside a home and see what is readily apparent to be evidence of a crime, then they need not turn and run away from it either. Should that happen, then the best practice would probably be to handle the emergency, then secure the home and get a search warrant for the plain view evidence.
So, when does the “emergency aid doctrine” come into play to allow officers to warrantlessly enter a home? 1) When reasonable suspicion exists (“an objectively reasonable basis”) to believe that someone inside the dwelling is seriously injured or is imminently threatened with serious injury; AND, 2) the manner and scope of the entry and any search for the injured is reasonable.The take away on this case is that when the emergency that justified the entry is over, then the officers are to immediately leave
BY: Colin Wood (USAKS)
UPDATE: July 28, 2014
In 2007, a sheriff’s vehicle was stolen from storage, found wrecked in a ditch, and officers collected hair, blood and tissue samples from the windshield and interior. The SO received 3 anonymous phone calls identifying Powell as the thief. Assuming that there could have been corroboration of the call information, there was none. After an interview of Powell, and his refusal to consent to providing samples for comparison, the case detective sought a search warrant. The search warrant affidavit did not directly state the crime(s) being investigated, did not overtly mention that the SO had obtained comparison samples from the wrecked car, and it simply repeated the information received from the anonymous caller(s). The district judge found probable cause and issued the search warrant for Powell’s blood, hair, fingerprints, and buccal (cheek) cells. Later testing of the samples apparently matched Powell to the crime, and he was charged.
Powell sought suppression of the evidence arguing that 1) the SW affidavit did not explain how the evidence sought from Powell would help in the investigation because the affidavit did not tell the district judge of the existence of biological samples taken from the wrecked car; and, 2) the information received in the phone calls was anonymous and therefore unreliable. At the suppression hearing, the same district judge that had earlier signed the search warrant reversed himself finding the warrant affidavit lacked probable cause. But, the district judge decided that since the detective had acted in good faith in relying on the invalid warrant, the evidence should not be suppressed.
Powell appealed to the Court of Appeals. A COA panel unanimously held that the district court was correct. Powell then asked the Kansas Supreme Court to review his case and it agreed. The Supreme Court said just a few weeks ago that both of the lower courts were wrong, and it suppressed the evidence against Powell. “…[O]ne well-known requirement for a valid warrant is that ‘those seeking the warrant must demonstrate to the magistrate their probable cause to believe that the evidence sought will aid in the particular apprehension or conviction for a particular offense…….[this] search warrant was deficient because it failed to establish a nexus between the evidence sought (the biological material…) and that evidence’s ability to aid in the apprehension or conviction of the crime’s perpetrators. The search warrant application does not clearly identify the crime alleged. Instead, it generalizes that the ‘[a]ffiant has probable cause to believe and does believe that an offense against the laws of the State of Kansas, has been committed.” (emphasis added).
In other words, the detective should have said in the affidavit that the SO had collected samples at the crime scene which would be compared against the evidence sought by the search warrant (Powell’s samples); and, the detective should have overtly alleged in the affidavit the crime(s) being investigated. The Court said that a judge cannot simply assume facts not contained in the affidavit.
The Court went on to remind us that tips from unidentified informants used in affidavits must have been corroborated, or accompanied by a description of the informant’s basis of knowledge, or have some indicia of reliability shown. “A tip’s probative value is determined by examining the totality of the circumstances, including the informant’s basis of knowledge, i.e. the means by which the informant acquired the information, and the informant’s veracity, i.e. evidence of the informant’s credibility and reliability. And …. a deficiency on one prong can be compensated for by a strong showing on the other.”
The justices finally turned to whether the evidence against Powell should have been saved from suppression because of the officer’s good faith reliance on the warrant. Generally, the exclusionary rule should not bar the use of evidence obtained by officers acting in reasonable reliance on a search warrant issued by a detached and neutral magistrate, but ultimately found to be unsupported by probable cause. However, there are four circumstances when suppression would still be appropriate: 1) the magistrate issuing the warrant was deliberately misled by false information; 2) the magistrate wholly abandoned his or her detached or neutral role; 3) there was so little indicia of probable cause in the affidavit that it was entirely unreasonable for the officers to believe the warrant was valid; or 4) the warrant so lacked specificity that officers could not determine the place to be searched or the items to be seized. Here, it was exception number 3. The justices held that a reasonable officer would have realized that the warrant in this case was invalid because: 1) the affidavit failed to mention “any explanation why Powell’s blood, hair, prints, or cheek cells could provide evidence about the police-car theft;” and, 2) without more, the three uncorroborated anonymous tips were legally untrustworthy and unreliable.The takeaway on this case is that we need to write better affidavits, that we should not believe that judges can simply assume information that we do not provide them, that extra work is needed on anonymous tips, andthat we cannot operate on the belief that our legal shortcomings will always be saved by the Leon good faith exception to the exclusionary rule
Reference: Cell Phone Searches "incident to arrest"
BY: Colin Wood (USAKS)
UPDATE: June 27, 2014
The long dispute over the searching of cell phones incident to a lawful arrest has been settled. This week a unanimous United State Supreme Court held that “search incident to arrest” no longer applies to any cell phone, and searches of those phones may now occur in only three ways: 1) with a search warrant; or, 2) with voluntary consent; or, 3) with probable cause + exigent circumstances;. The Riley and Wurie cell phone cases were combined by the Court into one opinion. I had earlier predicted that the Court had accepted two cases instead of one so that they could find a difference between a flip phone and a smart phone. I was wrong.
The Court decided that modern cell phones are not just electronic versions of a calendar or a notepad carried in a person’s pocket. Instead, they are sophisticated computers that can hold thousands of documents, photos, videos and past GPS coordinates involving an arrestee’s life; and, therefore cell phones should hold a more protected place under the Fourth Amendment. We could go deeper into the reasoning, but that is not important here.
What is important is to recognize a couple of things:
1) your future searches of cell phones found on arrestees will most probably be with a warrant or with consent. Though the Court mentioned that “probable cause + exigent circumstances” is still a viable exception to the warrant rule for cell phones, the Court set the bar really high, mentioning two “extreme hypotheticals” that would qualify: “a suspect texting an accomplice who, it is feared, is preparing to detonate a bomb, or a child abductor who may have information about the child’s location on his cell phone.” The Court overtly rejected the long-used “loss of evidence” exigent circumstance because officers can simply turn the phone off, or take out the battery, or put the phone into a protective “Faraday” bag; and,
2) in discussing the new burden on law enforcement to obtain cell phone search warrants, the Court reiterated that in today’s world law enforcement can use technology (computers, scanners, internet) to quickly prepare, seek and obtain a warrant. That means that LE agencies who have held off buying equipment and establishing affidavit/warrant procedures that more efficiently coordinate law enforcement, prosecution and the courts are going to be left behind. Remember that in just the past two years we have seen search warrants required for GPS tracking devices, for DUI refusal blood draws, and now for cell phones. With the general national debate over privacy heating up, there is no reason to believe that the Court’s trend toward search warrants is going to slow.
In light of that, and to hopefully help the agencies that have not had a lot of experience with search warrants, I am in the process of putting together a new “affidavit and search warrant” class
Larry Welch, Director, retired, KBI
(In this excessive-force civil rights lawsuit brought against six officers and the mayor and police chief of West Memphis, Arkansas, holdings of the district court and U.S. Court of Appeals for the Sixth Circuit are here reversed by the U.S. Supreme Court, which finds the actions of the officers reasonable and within the law, and the 15 shots fired by the officers, killing both the driver and passenger of a fleeing car, not excessive, and further, that neither the 4th Amendment nor the 14th Amendment were violated by the police.)
It is midnight in July and Lt. Joe Forthman of the West Memphis, Arkansas PD has pulled over a white Honda Accord simply because the car has only one operating headlight. The driver is Donald Rickard and the passenger, a female, is Kelly Allen.
As the officer stands at the driver’s door he observes an indentation in the windshield “the size of a head or a basketball,” and glass shavings on the dashboard. He also sees beer in the car. (The officer would later testify that he initially wondered if the vehicle had possibly struck someone.) He asked the nervous Rickard if he had been drinking. Rickard replied that he had not. He failed to produce the driver’s license that Forthman had requested and, when the officer asked him to step out of the car, Rickard, instead, sped away.
During the chase that followed, and ended in Memphis, Tennessee, Lt. Forthman was joined by five other police cruisers, operated by Sgt. Vance Plumhoff and Officers Jimmy Evans, Lance Ellis, Troy Galtelli, and John Gardner, respectively. Speeds often exceeded 100 miles per hour. More than 24 other vehicles were passed and/or run off the road by Rickard. The pursuit lasted more than five minutes and was highlighted by “outrageously reckless driving” by Rickard.
Rickard struck more than one police car prior to a head-on collision with another during the pursuit, and police were unsuccessful in attempting to utilize a “rolling roadblock” to stop him. Most of the pursuit and the eventual stop and shooting were captured on video by police cars’ cameras.
Finally, Rickard raced into a parking lot off the interstate and collided with Plumhoff’s cruiser. Realizing he was being cornered, Rickard reversed his car, crashing into yet another police vehicle, but, still refusing to vacate his car, and then continuing to attempt to push police cars away, back and forth, bumper-to-bumper, he again broke loose from his encirclement and started to flee once again. Three officers fired fifteen shots into the car, bringing an end to the dangerous chase, and to Rickard and Allen.
A civil action was brought by the mother in behalf of Rickard’s minor child. The district court and the Sixth Circuit of Appeals found the officers’ actions unreasonable and in violation of the 4th Amendment. The plaintiff had argued the officers could not use deadly force to terminate a chase, and also, the number of shots fired was excessive. Both courts denied the officers qualified immunity in the matter.
But, here the Big Court overrules the lower courts and says Rickard’s “flight posed a grave public safety risk ... and the police acted reasonably in using deadly force to end that risk.” And further, “It stands to reason that, if police officers are justified in firing at a suspect in order to end a severe threat to public safety, the officers need not stop shooting until the threat has ended.” The Court noted that all 15 shots were fired over a 10 – second span, during which Rickard “never abandoned his attempt to flee” and even kept driving after being shot until he crashed. The Court said the officers reacted correctly and were entitled to qualified immunity.
This opinion, delivered by Justice Alito, was technically a 9-0 decision, although Justice Ginsburg did not participate in the discussion of the reasonableness of the officers’ actions and Justice Breyer did not join the discussion of the reasonableness of the number of shots fired. I know not why. I also don’t know why Rickard fled.
(Bottom line: Many Court observers have expressed the opinion that this decision should give law enforcement considerable freedom to use force, even deadly force, to terminate dangerous high-speed chases without worry about litigation and liability. And also that this opinion is another example of the Big Court’s growing reluctance to second-guess the decisions law enforcement is confronted with in split-second stressful situations.)
BY: Colin Wood (USAKS)
UPDATE: June 11, 2014
One dark and stormy night (no, really, with sleet too) Gregory Keenan stopped at his mother-in-law’s house to pick up Keenan’s small son. The mother-in-law noticed that Keenan was “stumbling around, talking a little bizarre,” swaying and smelled of alcohol. Keenan went out into the bad weather with Junior, and headed for his home. Grandma called 911. An officer was dispatched to Keenan’s residence on the identified-caller’s (Grandma) DUI tip, and the dispatchers also told the officer that there appeared from the computer to be a protection from abuse order (PFA) violation (the PFA was later found to have been dismissed).
As the responding officer watched, Keenan pulled into his driveway. The officer contacted Keenan and immediately noticed a strong odor of alcohol, stumbling while carrying Junior, and an obvious effort to get to his house and away from the officer. Faced with keeping Keenan outside for investigation or allowing him to take Junior in out of the weather, the officer asked to accompany them into the house. Keenan refused. Another officer arrived, and despite Keenan’s objection, both officers went into the house with Keenan and Junior. Inside, Keenan was arrested but attempted to go to the kitchen and a 12” butcher knife telling the officers, much to his attorney’s later chagrin, “I’m fucking Jersey, baby. I’ve taken care of more cops than you’ll know.” After dutifully preventing Keenan from being/going/doing/or relocating to “Jersey,” the officers searched Keenan’s truck and found open containers. After being charged with DUI, Keenan moved to suppress the evidence gained by the officers after their entry into the house arguing the officers did not have a warrant, consent or probable cause of a crime + exigent circumstances. He lost that argument to the district court, and was convicted by a jury. Keenan appealed.
The Court of Appeals panel agreed with the district court. “Physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed……[a]ny warrantless entry is per se unreasonable unless it falls within one of the exceptions to the warrant requirement recognized in Kansas….[o]ne such exception is when probable cause with exigent circumstances justify an immediate warrantless entry.” First, the panel held that at the time the officers entered Keenan’s house they had probable cause to believe the crimes of DUI and PFA violation had occurred, and that Keenan had committed them. Then, the panel turned to whether exigent circumstances were present, of which you will remember there are two kinds: 1) prevention of loss, destruction, or concealment of evidence; and, 2) hot pursuit. The panel found that both kinds existed.
The panel warned on “prevention of loss, destruction or concealment of evidence” that “[t]here is an absence of caselaw in Kansas to answer the question of whether preservation of blood-alcohol evidence creates a sufficient exigency to permit police to follow the driver into his or her house without a warrant.” Therefore, do not take this case as meaning that the Court is creating a “bright-line” rule for following possible DUIs into a house, because it is not. Each case will be different. Here, the officers were in contact with Keenan, were able to observe him, believed he was trying to avoid them using the need to put Junior to bed, did not follow him into the house but ”accompanied him” into the house, and had Keenan entered the house alone, he could have locked the door behind him. (That sounds like splitting hairs, and it is. But, this panel is making some new law for Kansas and needs to make each of the facts of this particular case stand out).
As for “hot pursuit,” the Kansas Supreme Court has consistently recognized hot pursuit as an example of exigent circumstances. Here, the officers had a choice: keep Junior out in the nasty weather, or keep Keenan in their control by following him into the house. “The fact Keenan was trying to retreat into his house, particularly in light of his request to put his young son to bed, does not protect him from an arrest that was ‘set in motion in a public place’…….while this pursuit may not have been the equivalent of an action movie, the United States Supreme Court has still deemed the short trip from the doorway of a house to the interior to qualify as hot pursuit.”So, don’t read too much into this case, but it is certainly a step in the right direction.
BY: Colin Wood (USAKS)
UPDATE: June 11, 2014
Following an interstate meeting on “grow houses,” a Kansas officer received information from a Missouri officer that an unknown male had in Missouri purchased soil conditioner and liquid fertilizer. The male was driving a Kansas car registered to Mai Lin Malone with a Kansas address. City water records showed Mai Lin Malone at that residence. The Kansas officer went to the address and recovered two trash bags from a garbage can on the curb in front of the residence. One trash bag had marijuana plants and other items consistent with marijuana cultivation. The second bag contained mail addressed to a “Melissa Sayer” but showing the same address where the trash can was located and Mai Lin Malone resided.
The officer submitted an affidavit to a judge, a search warrant for the Malone residence was issued, it was executed the next day, and a marijuana grow, paraphernalia, firearms and other items were seized. Timothy Malone was charged, and he later asked the trial court to suppress the evidence because the search warrant was not based upon sufficient probable cause. After a hearing, the trial court agreed. The State appealed.
Recently, a panel of the Kansas Court of Appeals agreed with Malone too. Citing other cases, the panel held that in trash pulls, the general rule is that officers must show some evidence connecting the drug evidence discovered in the trash with the residence to be searched. In this case, there was only one trash pull, there were two bags, and the one bag with the drug evidence did not contain any “indicia of residency.” The panel said that evidence connecting a residence with evidence in a trash can does not necessarily have to be in the same bag, but there must be some linkage in the affidavit. In this case, there was no surveillance or evidence of who placed the cans at the curb, and the only name in either of these bags was a name unknown to the officers. Since the particular trash can was located where any member of the public could have placed something in the container, the affidavit just needed more. Though the panel did not indicate it would have made a difference in this case, the judges did give examples: they wondered why the affidavit did not contain information about why a single purchase of soil conditioner and liquid fertilizer might be indicative of marijuana cultivation, and they wondered why officers had not compared the defendant’s physical appearance with the person seen buying the Missouri supplies. Overall, they thought more investigation was needed before applying for a search warrant.
As a backup if the warrant was lost, the State argued that the good faith of the officers should save the search. Remember, that the exclusionary rule should not apply where law enforcement officers relied in good faith on a signed warrant. But, there are exceptions to good faith: 1) the magistrate issuing the warrant cannot be deliberately misled by false information; 2) the magistrate cannot wholly abandon his or her detached or neutral role; 3) there cannot be so little indicia of probable cause contained in the affidavit that it was entirely unreasonable for officers to have believed the warrant was valid; and, 4) the warrant cannot so lack in specificity that officers cannot determine the place to be searched or the items to be seized. But, after review, the panel said the good faith exception to the exclusionary rule should not apply. Under these facts, the officers should have realized that there was insufficient probable cause in the supporting affidavit, and should therefore not have executed the warrant. A complete loss.
Too bad that deference to the warrant-issuing judge did not prevail.
BY: Colin Wood (USAKS)
UPDATE: June 6, 2014
BY: Colin Wood (USAKS)
UPDATE: May 2, 2014
On a beautiful summer day in sunny California, Prado Navarette was driving his silver Ford F-150 down famous Highway 1. With Prado was his, surely for personal use, 30 pounds of marijuana. At about 3:42 P.M., at milepost 88, another driver thought that Prado had run her off the highway and she reported Prado’s alleged recklessness to 911. Though the offended driver had in fact given her name to the dispatcher, the suppression issue proceeded through the appellate courts as an “anonymous tip.”
At 3:47 P.M., after a couple of dispatchers had exchanged the information, 911 put out Prado’s truck description including the tag number, the offense location, and the direction of travel: southbound. Thirteen minutes later, at milepost 69, an officer saw Prado’s truck (19 miles from, and 18 minutes after, the tipster’s 911 call) and the officer followed it for about 5 minutes looking to corroborate the reported poor driving. The officer saw no bad driving. But, the officer stopped Prado’s truck anyway, and upon approach detected the odor of marijuana. The odor led to a search, an arrest, and a whole bunch of billable hours for a wide variety of attorneys.
A few days ago, the U.S. Supreme Court held 5-4 that though admittedly a close case, the officer had reasonable suspicion to stop Prado based upon the anonymous tip information and the surrounding circumstances. In dissent, Justice Scalia wrote,“[t]he Court’s opinion serves up a freedom-destroying cocktail .….”; “[t]o prevent and detect murder we do not allow……targeted Terry stops without reasonable suspicion. We should not do so for drunken driving either.”; “…all of us on the road, and not just drug dealers, are at risk of having our freedom of movement curtailed on suspicion of drunkenness, based upon a phone tip, true or false, of a single instance of careless driving.”
As you know, and unlike information from an identified 911 caller, an anonymous tip is presumed to be unreliable; and will not, standing alone, support reasonable suspicion. So, generally, an officer has to flesh-out and corroborate the information from an anonymous tip. And, the Supreme Court actually reaffirmed that general rule in this case. So, what is different about the facts in this case? To answer that, the Court restated the standard from which we start: a tip has to have “adequate indicia of reliability for the officer to credit the caller’s account.” Here, the majority of justices thought that, 1) running someone off the road is more like a probable-drunk-driver than a careless driver, saying “…[t]hat conduct bears too great a resemblance to paradigmatic manifestations of drunk driving to be dismissed as an isolated example of recklessness.”; 2) the particular caller’s information was not “bare-bones,” rather the caller claimed eyewitness knowledge by providing the detailed description of the vehicle, the license tag, the location and the direction of travel. Firsthand observations are to be given more weight in the credibility analysis; 3) a contemporaneous (very timely) report has long been treated as “especially reliable,” because startling events reported by a citizen as they happen do not generally give that citizen sufficient time to make up a lie; and, 4) because new 911 technology can now automatically capture at least some of a caller’s information, tipsters are less likely to make false reports to a 911 dispatcher. So, Prado’s stop was based upon reasonable suspicion and valid.
That all said, officers should probably not make this case into more than it is. Anonymous tips are still initially considered unreliable, so the more corroboration and fact-finding by a responding officer the better. This was admittedly a close case and some scholars believe that in contrast to other crimes, the immediate public safety hazard of a drunk driver weighed a little heavier with some of the justices. That belief is probably correct.
Larry Welch, Director, retired, KBI
(The high court, with Justices Ginsburg, Kagan, and Sotomayor dissenting, holds that a resident's objection to a warrantless law enforcement search does not prevent search of the premises later that day with consent from another resident, if the objecting resident is no longer present, having been lawfully removed there from. In this case he was arrested and taken to jail. Is this a wonderful country or what?)
Los Angeles police officers, involved in investigation of gang activity, pursued a robbery suspect into defendant's apartment building. They heard an argument coming from an apartment wherein defendant and his girlfriend were co-tenants and they knocked on that door. The girlfriend, who was holding a baby, answered the door. She was crying, her face was red, she had a large bump on her nose, and blood on her blouse. One officer asked about her welfare and if anyone else was in the apartment. She replied the only other person present was her four-year-old son. The officer asked her to step into the hallway so the officers could conduct a protective sweep. With that, the defendant stepped forward and said, "You don't have any right to come in here. I know my rights".
Fernandez, clad, surprisingly, only in boxer shorts, was removed from the apartment and arrested on the robbery charge, after being identified by the initial robbery victim. He was also suspected at the time, of course, of assaulting the girlfriend.
Approximately an hour later officers returned to the apartment and advised the girlfriend of her boyfriend's arrest and incarceration. They received oral and written consent from her to search the apartment. Officers recovered gang paraphernalia, a knife, the clothing worn by the robbery suspect, and ammunition, and the girlfriend led the officers to a concealed sawed-off shotgun. Fernandez, of course, the objector, was not present during the search.
Defendant was charged with robbery, assault on the girlfriend, possession of a firearm by a felon, and possession of an illegal shotgun and ammunition. He was found guilty in a jury trial and sentenced to 14 years in prison. The California Court of Appeal affirmed and the California Supreme Court denied review. The sole issue here on appeal to the U.S. Supreme Court is what about Fernandez not granting consent for the police entry into the apartment and, therefore, obviously not consenting to the later warrantless search of the apartment from which came all the evidence in this case? Once a co-tenant objects to a search, is that objection still good later, in absentia, over consent from another co-tenant who is present? "Heck no," says the majority here, so to speak, as long as the objector was lawfully removed (probable cause, outstanding warrant, arrest, etc.).
The defense had relied on Georgia v. Randolph, 547 U.S. 103, (2006), the last consideration of consent search by the U.S. Supreme Court, wherein one cotenant said "yes, search," and the other said, "no, stay out," so to speak, as they stood together at the threshold of their joint tenancy, so to speak. But, the high court there had ruled that the consent of one co-tenant is not sufficient when the other co-tenant is present and is objecting to the request to search.
Here Justice Alito, writing for the majority, explains, "In this case, we consider whether Randolph applies if the objecting occupant is absent when another occupant consents. Our opinion in Randolph took great pains to emphasize that its holding was limited to situations in which the objecting occupant is physically present. We therefore refuse to extend Randolph to the very different situation in this case, where consent was provided by an abused woman well after her male partner had been removed from the apartment they shared."
(Bottom line: We do not use consent search enough. It is one of the best exceptions to the Fourth Amendment warrant requirement available to us. But, especially when the consenter is the criminal himself, use the signed consent waiver. Judges, prosecutors, and juries love signed consent waivers. And, most importantly, they break defense attorneys' hearts.)
BY: Larry Welch, Director, retired, KBI
(The U.S. Supreme Court, 9-0, holds that the Kansas Supreme Court should not have overturned the conviction and death sentence of Scott Cheever, who used the defense of voluntary intoxication on methamphetamine when he shot and killed Sheriff Matt Samuels. The high court reversed the Kansas decision to throw out Cheever's 2007 conviction and death sentence, once again vindicating the Kansas death penalty statute, and returned the case to Kansas.)
This is a case sadly familiar to the Kansas law enforcement community. On January 19, 2005, Matthew Hayden Samuels, the forty-two-year-old sheriff of Greenwood County, Kansas, and the third generation of Samuels to serve Kansas law enforcement ---- his son Heath is today the fourth ---- was headed toward Hilltop, an unincorporated area in rural Greenwood County, between the towns of Lamont and Virgil. He was accompanied in separate vehicles by two of his eight deputies. They had, minutes before, received a tip from a reliable source that a fugitive, Scott Cheever, could be located at a residence at Hilltop.
Cheever was twenty-three years old, 205
pounds, with tattoos of teardrops under his
right eye, and an addiction to methamphetamine.
When not incarcerated, primarily at Lansing, but
also in Kansas correctional facilities at
Ellsworth, Winfield, and El Dorado, he was a
lifelong resident of Greenwood County. Recently
released from prison on parole from an armed
robbery conviction, Cheever had failed to
maintain contact with his parole officer and was
the subject of a parole violation warrant issued
January 5, 2005. But that wasn't his only legal
problem. He was also the subject of a bench
warrant for forgery in
Woodson County, an arrest warrant for felony theft in Lyon County, and warrants in Greenwood County for burglary, grand theft, possession of drugs, and criminal possession of firearms. And both the FBI and Emporia Police Department wanted to talk to him. He had been busy during his brief period of freedom.
Sheriff Samuels was not only acquainted with Cheever, he had previously arrested Cheever, and had unsuccessfully tried to mentor Cheever as a juvenile, as had others, i.e., teachers, coaches. His deputies also knew Cheever well, and the sheriff and both deputies were well acquainted with the Coopers, who occupied the residence to which they were enroute.
In 2005, methamphetamine in general, and meth labs in particular, were the scourge of Kansas and many other states. An article in the April 2000 issue of the FBI Law Enforcement Bulletin, entitled "Clandestine Drug Labs," wisely noted that the only situation more dangerous for law enforcement than entry into a known meth lab site was entry into an unknown meth lab site while it was in operation.
That was the situation as the sheriff and his deputies arrived at Hilltop. Not only did they not know the Coopers and two guests, including Cheever, had spent the night cooking and using meth, and another guest had left only a bit before their arrival, and that Cheever was armed with two handguns, but most importantly, they did not know that the Hilltop crew had been tipped that law enforcement was coming, so the two remaining guests, including Cheever, were hiding upstairs.
The sheriff did not believe the Coopers' lies that Cheever was not present and he was shot and killed by Cheever as he proceeded toward the stairs, his gun still holstered. The deputies, under fire themselves from the unseen Cheever, courageously dragged their sheriff from the ramshackle, filthy house, as the other guest upstairs leaped from a window and both Coopers ran from the house, leaving Cheever as the sole occupant. A daylong barricaded suspect situation ensued, before the whimpering Cheever, who was firing at troopers before being subdued, was captured.
The other four individuals at the Hilltop scene during the night and that terrible morning eventually received significant, meth-related prison sentences of 24 months, 46 months, 13 years, and 13 years plus 6 months. And Cheever's girlfriend received 19 months in prison for obstruction of justice for a phone call to Hilltop advising that law enforcement was enroute.
Other background information you need: In a unrelated case, State of Kansas v. Marsh, 278 Kansas 520 (2004), the Kansas Supreme Court held the Kansas death penalty statute to be unconstitutional; in Kansas v. Marsh, 548 U.S. 163 (2006), the U.S. Supreme Court told the Kansas Supreme Court that its 4-3 2004 decision was wrong, and that, indeed, the Kansas death penalty statute was constitutional.
Therefore, in 2006, since the death penalty was then available for Cheever in state court, his charges were moved from federal court back to Greenwood County District Court, at Eureka, Kansas. The capital murder trial started on October 19, 2007, and ended on October 30, 2007. Voluntary intoxication, methamphetamine, and a poor childhood made him do it, were the defenses, not innocence. The defense attorney's opening statement admitted that the trial would not be a "who dunnit." From the witness stand, Cheever himself, his mother, and an aunt, all indicated that, as a youngster, Cheever was given his own supply of marijuana in order to keep him out of theirs, and argued that methamphetamine addiction, not Cheever, killed Sheriff Samuels. A defense specialist in psychiatric pharmacy, dean of the Auburn University School of Pharmacy, testified in support of the defense theory that long-term meth use had damaged Cheever's brain and, on the morning in question, he was so intoxicated on meth he lacked premeditation, key elements of capital and first degree murder.
The prosecution countered with testimony from officers, KBI agents, and troopers at the scene regarding Cheever's marksmanship and mental alertness, and, most importantly, with their own psychiatrist who had previously examined Cheever in a federal court-ordered examination. He testified that Cheever shot Sheriff Samuels because of "his antisocial personality," not because his brain was impaired by methamphetamine.
The jury required less than four hours to
find Cheever guilty of capital murder, attempted
murder of four other officers, possession of a
firearm, and manufacture of methamphetamine.
Later the jury recommended the death sentence
and, on January 23, 2008, Judge Mike Ward
followed that recommendation and added 61 years
on the additional charges.
The mandatory appeals followed and in August 2012 the Kansas Supreme Court affirmed the drug and firearms convictions, but reversed the murder and attempted-murder convictions on the ground the state violated Cheever's 5th Amendment privilege against self-incrimination by using the psychiatrist who had examined him when he was being charged in federal court. In essence, here, the U.S. Supreme Court says Cheever waived his 5th Amendment privilege by using the voluntary intoxication defense, using his own psychiatric testimony and testifying himself about it. "We hold that where a defense expert who has examined the defendant testifies that the defendant lacked the requisite mental state to commit a crime, the prosecution may offer evidence from a court-ordered psychological examination for the limited purpose of rebutting the defendant's evidence." Fair is fair.
(Bottom line: Our state supreme Court seems to lose its way whenever the state's death penalty is involved. Fortunately, one benefit of this case is that we're reminded our Kansas death penalty statute is quite constitutional. Now, if we just had the guts to use it.)
BY: Colin Wood (USAKS)
UPDATE: March 6, 2014
Dontae Patterson was the unfortunate recipient of law enforcement scrutiny, and officers executed a drug search warrant on his home. In the driveway, parked against the garage door, and occupied by Dontae’s son, was Dontae’s car, a Mercedes. The search warrant specifically authorized a search of the house, but did not mention cars generally, or the Mercedes specifically. Officers searched the residence and the Mercedes, and located evidence in both. Among other things, Dontae asked the trial judge to suppress the evidence found in the Mercedes because the car had not been named in the search warrant. The trial judge agreed and the evidence was suppressed. The State appealed.
The Court of Appeals last week disagreed with the trial court. The appellate panel reminded the trial court and us that 1) as a general statement of law, it is well settled that the Fourth Amendment protects from unreasonable searches not only our homes, but also the area surrounding our homes called the “curtilage;” and, 2) generally in Kansas a search warrant describing only a residence will also inherently authorize a search of any other buildings or vehicles within the curtilage of the residence even though the ]out]buildings or vehicles are not specifically described in the warrant.
The panel found that by its location on the driveway close to the house Dontae’s Mercedeswas well within the curtilage of the house; and, since the Mercedes was owned by Dontae (a target of the investigation), and was at the time the officers arrived being occupied by Dontae’s son, any problem with the search warrant possibly embracing an innocent visitor’s car, or the car of individuals “unconnected with the household,” was nonexistent.
So, the take away on this case is as long as the car is on the curtilage (no, parked on a public street in front of the house is not the curtilage), and the car is reasonably tied to the “household,” then a house search warrant that does not specifically mention cars will probably also cover the car
BY: Colin Wood (USAKS)
UPDATE: February 28, 2014
This week the United States Supreme Court cleared up some pesky questions in third-party consent. You will remember that consent to search is an exception to the Fourth Amendment’s warrant requirement, and that a person may voluntarily consent to a search of themselves or their effects. And, officers need no suspicion of criminal activity to ask for consent. But, what about when more than one person has an expectation of privacy in an area officers wish to search?
In “third-party” consent, persons who share “common authority” over an area or effects each take the legal risk that one of their group might allow others, including the police, to enter and search. (Meaning that any person who does not wish others rummaging through their stuff should not share authority with anyone else). Therefore, any person with common authority over the premises or effects sought to be searched by police may consent to a search; and, remember that officers have a duty to make a good faith effort to confirm that such “common authority” actually exists in the person from whom they seek consent.
In 2006, the Supreme Court held that should two or more persons with common authority be present when officers request consent, and one of them says “no” (call that person the “objector”), then that objection wins out as to that particular objector (only). Meaning that the other, non-objecting person with common authority, could still consent to the search but any evidence found could not later be used against the objector. Since that 2006 case, questions have arisen about where an objector has to be located to say “no,” whether there are any lasting effects to saying “no,” and when the police remove the objector from the premises does the “no” remain or does it evaporate. We now know the answers.
Walter Fernandez decided to involve himself in a parking lot armed robbery. Officers tracked him to an apartment, and upon their approach officers heard screaming and fighting inside. Upon knocking, a visibly-injured Roxanne Rojas answered the door. Roxanne, who apparently shared the apartment with Walter, stepped outside the apartment and told officers that her 4 year-old son and Walter were the only other persons in the apartment. Walter then appeared at the door in his shorts and said, “you don’t have any right to come in here. I know my rights.” [We are going to take that as a “no” to any request to consent to enter/search]. Officers arrested Walter for battering Roxanne, and hauled him off to the slammer. A detective later returned to the apartment to interview Roxanne, and the detective requested that Roxanne consent to a search of the apartment. Roxanne agreed. Officers found gang paraphernalia, a knife used and clothing worn by the suspect in the earlier robbery, and ammunition. Roxanne’s young son also showed officers where Walter had hidden a sawed-off shotgun. Those items were used as evidence against Walter, a prior felon, who was convicted.
Walter then asked the Supreme Court to please explain to him what had just happened. And the Court did. By a vote of 6-3, the Court agreed with the detective’s consent search. The Court reaffirmed that an objector has to be physically present on the premises to say “no.” And, then the Court told us that 1) once Walter left the premises, his objection to the search was of no further legal effect upon the police; and, 2) as long as the police had removed Walter from the premises for a valid reason, like an arrest, and the police had not removed Walter to stop him from objecting, then the forced removal of Walter was fine. In other words, Walter’s earlier objection, like Walter himself, disappeared into the sunset.
The Court then added some great language to consent case law reminding us that consent searches “are part of the standard investigatory techniques of law enforcement agencies” and are “a constitutionally permissible and wholly legitimate aspect of effective police activity.” In fact, “[d]enying someone in [Roxanne] Rojas’ position the right to allow the police to enter her home would also show disrespect for her independence. Having beaten Rojas, petitioner [Walter] would bar her from controlling access to her own home until such time as he chose to relent. The Fourth Amendment does not give him that power.” So, that to me means that it is just as much a constitutional right to say “yes” as it is to say “no.”
BY: Colin Wood (USAKS)
UPDATE: February 10, 2014
IMPORTANT: Last Friday, a panel of the Kansas Court of Appeals held unconstitutional a “K.S.A. 8-1001(b)(2) forced blood draw” following a fatality accident when the officer proceeded solely on that statutory authority.
K.S.A. 8-1001(b) states: A law enforcement officer shall request a person to submit to a test or tests deemed consented to under subsection (a): . . . (2) if the person was operating or attempting to operate a vehicle and such vehicle has been involved in an accident or collision resulting in serious injury or death of any person and the operator could be cited for any traffic offense, as defined in K.S.A. 8-2117, and amendments thereto. The traffic offense violation shall constitute probable cause for purposes of paragraph (2).”
It was that last sentence that this panel, and many other appellate courts in other states with similar statutory language, found violates the Fourth Amendment. The panel held that an accident + a serious injury or death + a traffic offense, standing alone, is not probable cause that the driver was operating or attempting to operate a vehicle under the influence of drugs or alcohol. Remember that the Fourth Amendment trumps a statute, and a legislature cannot simply declare that certain combined facts amount to probable cause.
Meaning in this case that the officer needed more. The panel did not say how much more, but surely an odor of alcohol and/or signs of impairment before and after the accident and/or physical evidence at the scene would help. I predict, since so many states have struck down this type of statutory language, that should this case be reviewed again, this panel’s decision will be upheld. And, to be fair to this panel, it was apparent that they acknowledged and struggled with the great societal damage brought about by DUI drivers; but, in the end, probable cause did not exist and the Constitution has to be followed.
This information is hot off the press and I wanted you to know ASAP. On this one, please contact your local prosecutor on how they wish you to proceed concerning your next DUI + accident + traffic offense + refusal. Again, K.S.A. 8-1001(b)(2), standing alone, is not probable cause and cannot authorize a forced blood draw.
BY: Colin Wood (USAKS)
UPDATE: September 3, 2013
I have been waiting for a case like this. A case where statements are made by an investigating officer in a search warrant affidavit like, “members of the D.E.U. observed two individuals who they know to be involved in the use and/or distribution of methamphetamine……” but then no facts are provided in the affidavit supporting how the officers knew. Here is that case. The Kansas Court of Appeals not only hands the State a big loss, but the panel goes to great lengths to hold that even the good faith exception cannot help this search warrant. If you write affidavits for search and arrest warrants, then I highly recommend reading this opinion because it will be the go-to opinion for the Kansas defense bar when they want to argue lack of probable cause in an affidavit.
This appeals panel reminds us that “bald conclusions, mere affirmations of belief, or suspicions are not sufficient to support a finding of probable cause;” and “…judicial officers cannot provide the independent check contemplated in the Fourth Amendment if they are asked to review conclusions rather than facts.” “A reasonable law enforcement officer ought to understand a representation that an individual named in an affidavit is “known” to be involved in drug trafficking (or some other nefarious endeavor) amounts to the sort of opinion that cannot lend any weight to a probable cause determination. Standing alone, it is a conclusion without factual support….” In this case, “…the affidavit contains no explanation of the [officers’] purported knowledge. So those representations amount to probable cause nullities.” (emphasis added).
Said another way, officers should state the facts underlying their conclusions. Then, once the facts of who, what, when and where has been provided, officers may in certain circumstances and based upon their training and experience make reasonable how and why inferences from those stated facts. But, the day of “the individual was known to be involved in drugs,” without more, appears to be over.
In fact the Court made the point even better: in these situations, “a reasonably trained law enforcement officer would recognize the abject failure of the affidavit to factually support the requested search warrant. And an officer obtaining and executing that warrant necessarily would be either ill-trained or acting in disregard of his or her training. The deterrent effect of the exclusionary rule, therefore, ought to yield beneficial results. The law enforcement agency presumably would take steps to better train its officers in basic search and seizure requirements, correcting systemic shortcomings. Or, if that training were already sufficient, the officer’s supervisors would reemphasis that he or she needs to adhere to what has been taught, heading off any similar failure with future affidavits and warrants.”
See this case at www.kscourts.org;; click “recent and published opinions;: Court of Appeals, August 2, 2013.
BY: Colin Wood (USAKS)
UPDATE: Jun 19, 2013
One evening, Rhonda Ewertz was driving her car rather badly and without taillights. After being stopped, the officer noted the odor of alcohol coming from the car, and observed Rhonda’s bloodshot and glassy eyes, slurred and inconsistent speech. Rhonda admitted to drinking at least one alcoholic beverage but could not recall how many total she had consumed. Rhonda displayed intoxication during field sobriety tests, and she refused a PBT. She was arrested for DUI and placed in the patrol car. Incident to Rhonda’s arrest for DUI, the officer conducted a search for alcohol of the car’s passenger compartment. While searching a bag on the floorboard, the officer found methamphetamine. Rhonda, who to that point was already in the minus column in making good decisions, told the officer the meth belonged to her. Rhonda went to jail for DUI and possession of methamphetamine.
Rhonda later attempted to have the meth suppressed arguing that the officer had illegally searched her car. The trial court disagreed, and Rhonda was convicted. She then appealed the search incident to arrest of her car.
You will recall a change in the law a few years ago concerning the “search incident to arrest” (SIA) exception to the Warrant Rule of the 4th Amendment. The old rule, known as the “Belton Rule,” allowed a search of the passenger compartment of a car based solely upon a lawful arrest. But, the Belton Rule was modified by the U.S. Supreme Court. The rule today, known as the “Gant Rule,” holds that the passenger compartment of a vehicle may be searched incident to a recent occupant’s lawful arrest only when 1) the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search [and that almost never happens], or 2) it is “reasonable to believe” evidence relevant to the crime of arrest might be found in the vehicle.
So, in Rhonda’s appeal, a panel of the Kansas Court of Appeals had to decide whether, based upon what the arresting officer knew at the time, it was “reasonable to believe” that evidence relevant to the crime of DUI might be found in the passenger compartment of Rhonda’s car. Though the panel varied on the reasoning, they did all agree that the search was lawful.
The panel first noted that in the nation’s courts there have developed two views about what “reasonable to believe” means in Gant SIA cases. The first approach holds that every search event is different, and based only upon that particular search event’s facts will there or will there not exist “reasonable suspicion” to believe evidence of the crime of arrest is then in the car. The second approach (known as the “categorical approach”) holds that some categories of “crimes of arrest” will never support a SIA, and some categories of “crimes of arrest” will always support a SIA. In this appeal, this panel noted that the Kansas Supreme Court has not yet chosen between the two approaches, but it seemed to the panel that both approaches apply here, so the search was proper.
Significantly, panel member Chief Judge Malone agreed with upholding the search of Rhonda’s car, but wrote separately to say that he thinks that Kansas courts should reject the “categorical” or “certain crimes always support a SIA” approach. Judge Malone appears to believe that the facts in every incident are different, and those facts will either rise to reasonable suspicion to believe there is evidence of the crime of arrest in the passenger compartment, or they won’t.
I predict that the Kansas Supreme Court will agree with Judge Malone. Until we know for sure, I plan to continue teaching that, other than this case which is somewhat ambiguous on the point, there is no automatic SIA authority based upon a particular category of “crime of arrest.” There are certainly types of crimes that carry more inherent suspicion of evidence maybe being present, but to be just to be safe remember “in this particular case, is there reasonable suspicion to believe that evidence of the crime of arrest is in the car at the time of the search.” I suppose you could think of it as the “type of-crime, PLUS-something-else” rule.
BY: Colin Wood (USAKS)
UPDATE: April 29, 2013
The Kansas Supreme Court recently held a confession involuntary because it was “coerced” during an interview by police. Miguel Garcia was one of four people allegedly involved in a 2009 robbery turned murder outside of a bar. Garcia did not have a gun, but during the robbery Garcia was mistakenly shot in the foot by his gun-wielding accomplice. Following the murder of the robbery victim, all four suspects left the area. Overnight Garcia never sought treatment from a doctor or hospital and was picked up by police the next morning. Garcia was read his Miranda rights, and signed a written waiver. The interview event was videotaped and spanned approximately 5 hours, though the questioning was intermittent and totaled only about 2 hours. During those 5 hours, Garcia more than once complained about needing treatment for his foot wound and pain; and, police told him more than once that they would not book him for murder if he would admit to the robbery and testify against the shooter. At one point just prior to his confession, Garcia asked to see his girlfriend, she was brought into the interview room, and the girlfriend, based upon speaking with police, gave Garcia the same advice. Garcia then admitted to participating in the robbery.
The prosecutor charged Garcia with robbery and felony murder. Garcia moved to suppress his confession. The trial judge questioned the police actions, but ultimately denied suppression of the confession. Garcia was convicted by a jury and appealed.
Last week, the Kansas Supreme Court reversed the trial court, suppressed Garcia’s statements, and sent the case back. The Court said that the State has the burden to prove by a preponderance of the evidence that a defendant’s statements were voluntarily made. A court is to look at the totality of the circumstances surrounding the event, including but not limited to: 1) the accused’s mental condition; 2) the manner and duration of the interrogation; 3) the ability of the accused to communicate on request with the outside world; 4) the accused’s age, intellect, and background; 5) the fairness of the officers in conducting the interrogation; and, 6) the accused’s fluency with the English language.
The justices focused on two things in this particular interview: 1) the officers’ failure to respond to Garcia’s repeated requests for medical treatment of his gunshot wound and pain; and, 2) the statements by the officers and the girlfriend “promising” Garcia would not be charged with murder if he would confess. The justices disliked both.
On the wound and pain, the Court said, “[i]f law enforcement officers make an accused endure pain, even less than debilitating pain, until the accused gives a statement that the officers will accept, the voluntariness of that confession is, at best, suspect. The record indicates that was the circumstances here.”On the “promised benefit,” the Court said, “The promised benefit was clearly stated: ‘They’re not going to book you for murder.’ That was the same carrot that the officers had been unsuccessfully dangled in front of Garcia for hours. But this time, it was delivered by someone that Garcia trusted, and the result was immediate: ‘All right, man, I did, I did try to rob that guy.’…….[t]he ability to make a murder charge and accompanying life sentence go away would be a strong motivator for prevarication [fabrication]………[t]he law enforcement officers’ coercive tactics and promises of leniency, in the context of the circumstances of the entire interrogation, convince us that the confession here was not a product of the accused’s free will, i.e. [in other words, it] was not voluntary.”
BY: Colin Wood (USAKS)
UPDATE: March 6, 2013
Here is the second U.S. Supreme Court case to come out this 2012-2013 term that directly affects street law enforcement:
Officers had a warrant to search an apartment for a handgun. The apartment was under surveillance awaiting the warrant’s execution. Officers watched as Chunon Bailey and a friend unexpectedly exited the apartment, entered a vehicle and drove away. Two detectives followed the car away from the apartment about 7/10ths of a mile and then stopped the car. Officers had no reason to stop Bailey other than he had just departed an apartment subject to a pending warrant execution. Bailey and his friend were ordered from the car and patted down. No weapons were found, but a key to the target apartment was found on Bailey’s person. Bailey and his friend were handcuffed and taken to the apartment where officers were by then searching. The gun sought by the warrant, and plain-sight drugs, were found at the apartment. At trial, Bailey denied living at the apartment. The apartment key found on Bailey, and Bailey’s statements made to the detectives at the car stop scene, were later used at trial to convict Bailey.
The question became: How far away from the scene of a search warrant execution can a person connected to the scene be reasonably detained? In this case, the majority of the justices held that seven-tenths of a mile was too far. Three of the justices would have held that Bailey’s detention was reasonable because: 1) the apartment was the subject of a valid search warrant; 2) Bailey and friend were seen leaving the apartment; and, 3) the detention occurred as soon as was reasonably practicable. Interestingly, for those who follow the individual justices and their alleged “liberal” v. “conservative” camps, the three-justice dissent in this case was made up of Justices Breyer, Thomas and Alito.
The Court’s written opinion reminds us that officers executing a valid search warrant may detain persons at the scene for officer safety purposes and in preventing destruction of evidence. The Court has also approved in the past the detention of persons found immediately outside the scene. But, here, 7/10ths of a mile was too far away for officers to claim that the officers at the scene would be in danger, or claim that Bailey and his friend could, prior to the warrant’s execution, have alerted others to the presence of officers, or claim that Bailey and his friend could have destroyed evidence. (the justices actually disagreed a little about whether the stop was 7/10ths of a mile away, or a full mile away, but it is really of no matter here).
I could go into more detail, but you get the idea. “Immediately” outside the scene of a search warrant means something more than the front porch, but something less than 7/10ths of a mile away.
BY: Colin Wood (USAKS)
UPDATE: February 21, 2013
In 2006, a Florida officer/dog handler stopped Clayton Harris for an expired license plate. During the encounter, the handler walked his dog around the truck and the dog alerted to the odor of narcotics at the driver’s door. No drugs were located, but meth-making materials were. Harris was arrested. While out on bond, Harris and the officer met each other again when the officer stopped Harris for a bad brake light. Again, the dog was deployed, and the dog alerted on the driver’s door. Again, no drugs were found. Harris filed for suppression.
At the hearing, testimony and records indicated that the handler and dog had been trained, and though the dog’s certification had expired (Florida state law did not require certification), the officer and dog had continuously trained for four hours each week. Harris focused on the dog’s alerts where there had been no drugs found. But, the trial court said the State had put on enough and found probable cause for the search. The Florida Supreme Court later disagreed holding that “[w]hen a dog alerts the fact that the dog has been trained and certified is simply not enough to establish probable cause.” The Florida court went on to produce its own list of what extra evidence would be needed, including field performance records that would indicate unverified alerts.
Florida appealed to the U.S. Supreme Court. On Monday, the justices unanimously reversed the Florida Supreme Court. Justice Kagan, writing for the whole court, said the test for probable cause is not reducible to a precise definition or quantification. All that is required “is the kind of fair probability on which reasonable and prudent people, not legal technicians, act.” In evaluating whether the State has met this practical and common-sensical standard, courts have consistently looked to the totality of the circumstances. The Court recognized that field records, in uncontrolled situations, may not be fair to an otherwise reliable dog. False positives may occur because “the dog may have detected substances that were too well hidden or present in quantities too small for the officer to locate. Or the dog may have smelled the residual odor of drugs previously in the vehicle or on the driver’s person……[t]he better measure of a dog’s reliability thus comes away from the field, in controlled testing environments.”
So, like it has been for a long time, as long as evidence of the dog’s satisfactory performance in a certification or training program is presented, a court can presume (subject to any conflicting evidence offered) reliability and the alert provides probable cause. A defendant has the right to question the training standards, methods, and how well the dog has done in those controlled situations.
Then, Justice Kagan summed it up, stating “[t]he question—similar to every inquiry into probable cause—is whether all the facts surrounding a dog’s alert, viewed through the lens of common sense, would make a reasonably prudent person think that a search would reveal contraband or evidence of a crime. A sniff is up to snuff when it meet that test.”
BY: Colin Wood (USAKS)
UPDATE: December 27, 2012
Two DUI cases have recently come out of the Kansas Supreme Court. Both concerned DL administrative suspensions and the following language of KSA 8-1001(b): “(b) A law enforcement officer shall request a person to submit to a test or tests deemed consented to under subsection (a): (1) if the officer has reasonable grounds to believe the person was operating or attempting to operate a vehicle while under the influence of alcohol or drugs, or both . . . and one of the following conditions exists: (A) The person has been arrested or otherwise taken into custody for any offense involving operation or attempted operation of a vehicle while under the influence of alcohol or drugs, or both, . . . in violation of a state statute or a city ordinance.”
Instead of giving you the facts of these particular cases, I think it may be better to just provide the holdings of the Court. First, recall that having “reasonable grounds” in DUI cases is the same thing as having “probable cause.” OK, now for the holdings:
To request that a person submit to testing, the officer shall have lawfully arrested the person for an offense involving operation or attempted operation of a vehicle under the influence of alcohol or drugs or both. Or, another way to look at it, is a lawful arrest for an offense not an offense involving the operation or attempted operation of a vehicle under the influence . . . fails to give an officer authority to request testing. And the Court said it like this, “Simply put, under K.S.A. 8-1001(b), if (1) the officer believes the person is operating or attempting to operate a vehicle while under the influence of alcohol or drugs, or both, and (2) the officer arrests the person for any offense involving the operation or attempted operation of a vehicle while under the influence of alcohol or drugs, or both, then (3) the officer becomes authorized to request the test.”
“Probable cause is the reasonable belief that a specific crime has been or is being committed and that the defendant committed the crime. Existence of probable cause must be determined by consideration of the information and fair inferences therefrom, known to the officer at the time of the arrest. Probable cause is determined by evaluating the totality of the circumstances. As in other totality of the circumstances tests, there is no rigid application of factors and courts should not merely count the facts or factors that support one side of the determination or the other. It is not necessary that the evidence relied upon establish guilt beyond a reasonable doubt. The evidence need not even prove that guilt is more probable than not.”
The Court overturned earlier cases and now disapproves of the following language that some of those earlier DUI cases added to the above PC definition: “It is sufficient if the information leads a reasonable officer to believe that guilt is more than a possibility.” So, on the suspicion scale, probable cause is now something greater than “more than a possibility” but is still less than “more probable than not.” Really, I am not sure in the big picture this really changes what most officers already understand.
From the facts of the Sloop case, and under totality of the circumstances, the Court held that the following is not probable cause to arrest: 1) Sloop drew the arresting officer’s attention when Sloop made a left-hand turn by starting to turn, stopping, and then turning again, but no actual moving violation occurred; 2) Sloop was “was sitting unusually close to his steering wheel”; 3) after being followed for 8-10 blocks and no traffic violations were seen, Sloop was stopped for a tag light out; 4) Sloop and his passenger smelled of alcohol; 5) Sloop’s eyes were watery and bloodshot; 6) in response to questions, and after hesitating, Sloop stated he had had one beer at a friend’s house; 7) Sloop’s speech was “impaired” but not “slurred.” By “impaired” the officer testified it was “not as clear as it could be but not inherently slurred either.”
Telling for the Court was after the initial unusual left-hand turn, the officer followed Sloop for 8-10 blocks and no further driving concerns were seen; after the stop when asked to exit the car, Sloop did not stumble and handed over his DL without fumbling it; no pre-arrest field sobriety tests were done at the scene because the officer did not have car video, and any taping had to be done post-arrest at the station; though the Court speculated that the horizontal gaze nystagmus test and preliminary breath test that were performed probably added to the officer’s pre-arrest PC, but since the tests were not introduced at trial (for evidentiary reasons) the Court did not take them into account here.
BY: Colin Wood (USAKS)
UPDATE: December 14, 2012
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Postings on social network websites such as Facebook and MySpace have been used to successfully attack law enforcement officers' credibility in courts.
In a New York State court, a NYPD officer was questioned by the defense attorney regarding statements he had posted on his Facebook webpage that portrayed him as a rogue cop. At the conclusion of his testimony, what should have been a slam-dunk "ex-con with a gun" case, resulted in an acquittal for the defendant because of the reasonable doubt created by the officer's own postings on Facebook and MySpace. In other words, his own website statements were used to impeach him.
Convictions rest on the credibility of the officer(s). The defense strategy was to show the jury that what the officer writes about himself on social network websites is how he "really" conducts police work. The suspect in this case claimed that the officer used excessive force on him and broke three ribs. The suspect went on to allege that when the police officer realized that he would have to explain the broken ribs, he "planted" a stolen 9mm Beretta on the suspect and charged him with the offense.
The officer in this case had made questionable social network postings but claimed it was simply bravado, similar to what might be said in a locker room. But the difference between jokingly "talking' trash" in person and posting it on the Internet is that postings are preserved indefinitely on a digital server. One of the notable postings introduced to the jury was that the officer watched the movie "Training Day" (a motion picture that displayed corrupt police behavior and brutality) to brush up on "proper police procedure." Another series of postings revolve around miscellaneous internet video clips of police arrests. One of his postings said, "if he wanted to tune him up some, he should have delayed cuffing him." In another he added, "If you were going to hit a cuffed suspect, at least get your money's worth 'cause now he's going to get disciplined for a relatively light punch."
In another example of poor judgment, an Indiana State Trooper foolishly posted comments on his Facebook page that were in direct conflict with the policies and procedures of his own department. In one comment he shares his views of police work, referring to himself not a state trooper, but as a "garbage man, because I pick up trash for a living." Another comment was, "These people should have died when they were young anyway, I'm just doing them a favor." An off-duty picture posted by the officer shows him holding a gun to a fellow officer's head. Both officers had been consuming alcohol, which the officer personally validated when he posted that they were "drinking lots of beer" that day.
Take a moment to consider the consequences of how a skilled defense attorney would use these postings to aid in the defense of their clients. In law enforcement work, there are no second chances when it comes to one's integrity and social network postings are available for the world to see and use, even when made in jest, so think through the significance and possible consequences of all postings before you hit the ENTER Button, and preserve them on a digital server for all of eternity.
Policy Reference is
found in the MPD Sworn Law
Enforcement Officer Code of
Ethics, GO-RAR-201.36, dtd April
11, 2005. Section III -
"I will keep my private life unsullied as an example to all, and will behave in a manner that does not bring discredit to me or my agency."
Brady v. Maryland (1963)
Under Brady, evidence affecting the credibility of the police officer as a witness may be exculpatory evidence and shall be given to the defense. Indeed, evidence that the officer has had in his personnel file that displays a sustained finding of untruthfulness is exculpatory to the defense.
City and County of San Francisco
The Ninth Circuit U.S. Court of Appeals held that "exculpatory evidence cannot be kept out of the hands of the defense just because the prosecutor does not have it, where an investigating agency does. That would undermine Brady by allowing the investigating agency to prevent production by keeping a report out of the prosecutor's hands until the agency decided the prosecutor ought to have it..." This ruling reiterates that the investigating agency is a part of the prosecutorial team.
Source: Derived from Los Angeles County Sheriff's Department News Letter, Vol. 9, No. 7, dtd May 27, 2009
Dwyer, Jim. "The Officer Who Posted Too Much on MySpace." New York Times 10 March 2009.
Noble, Jeff (October 2003). Police Officer Truthfulness and the Brady Decision. The Police Chief, vol. 70, no. 10, Retrieved March 18, 2009
MPD Manual of Policy & Procedure: 3-01/000.10 - Professional Conduct
Brady v. Maryland (83 S. Ct. 1194).
City and County of San Francisco
(548 F.3d 1293).
Whenever a foreign national is arrested or detained in the United States, there are legal requirements to ensure that the foreign national's government can offer him/her appropriate consular assistance. In all cases, the foreign national must be told of the right of consular notification and access. In most cases, the foreign national then has the option to decide whether to have consular representatives notified of the arrest or detention. In some cases, "mandatory notification" must be made to the nearest consulate or embassy "without delay," "immediately," or within the time specified in a bilateral agreement between the United States and a foreign national's country, regardless of whether the foreign national requests such notification.