Kansas Criminal Procedure Code

K.S.A. Chapter 22

Article 23 - Preliminary Proceedings

Current through end of 2017 legislative session

22-2301        Commencement of prosecution.

22-2302        Issuance of warrant or summons; availability of supporting affidavit or testimony.

22-2303        Prosecution begun by filing indictment or information; issuance of warrant; summons.

22-2304        Form of warrant or summons.

22-2305        Execution or service and return of warrant or summons.

22-2306        Defective warrant.

22-2307        Domestic violence calls; written policies to be adopted by law enforcement agencies; contents.

22-2308        Same; liability.

22-2309        Prosecution of crimes related to domestic violence; written policies adopted by prosecuting attorneys; contents.

22-2310        Prosecution of crimes related to stalking; written policies adopted by law enforcement agencies;contents.

22-2311        Prosecution of crimes related to stalking; written policies adopted by prosecuting attorneys; contents.

22-2301. Commencement of prosecution.

          (1) Unless otherwise provided by law, a prosecution shall be commenced by filing a complaint with a magistrate. A copy of the complaint shall forthwith be supplied to the county attorney of the county and a copy thereof shall be furnished to the defendant or said defendant's attorney upon request.

          (2) A judge of the district court may in extreme cases, upon affidavits filed with such judge of the commission of a crime, order the county attorney to institute criminal proceedings against any person, but any such judge shall be disqualified from sitting in any case wherein such order was entered and is further prohibited from communicating about such case with any other judge appointed to preside therein.

History: L. 1970, ch. 129, § 22-2301; L. 1976, ch. 163, § 2; Jan. 10, 1977.

22-2302. Issuance of warrant or summons; availability of supporting affidavit or testimony.

          (a) If the magistrate finds from the complaint, or from an affidavit or affidavits filed with the complaint or from sworn testimony, that there is probable cause to believe both that a crime has been committed and that the defendant has committed it, a warrant for the arrest of the defendant shall issue, except that a summons instead of a warrant may be issued if: (1) The prosecuting attorney so requests; or (2) in the case of a complaint alleging commission of a misdemeanor, the magistrate determines that a summons should be issued. More than one warrant or summons may issue on the same complaint. If a defendant fails to appear in response to the summons, a warrant shall issue.

          (b) For a warrant or summons executed prior to July 1, 2014, affidavits or sworn testimony in support of the probable cause requirement of this section shall not be made available for examination without a written order of the court, except that such affidavits or testimony when requested shall be made available to the defendant or the defendant’s counsel for such disposition as either may desire.

          (c)(1) For a warrant or summons executed on or after July 1, 2014, affidavits or sworn testimony in support of the probable cause requirement of this section shall not be open to the public until the warrant or summons has been executed. After the warrant or summons has been executed, such affidavits or sworn testimony shall be made available to:

          (A) The defendant or the defendant’s counsel, when requested, for such disposition as either may desire; and

          (B) any person, when requested, in accordance with the requirements of this subsection.

          (2) Any person may request that affidavits or sworn testimony be disclosed by filing such request with the clerk of the court. Upon entry of appearance by an attorney on behalf of the defendant, or indication by the defendant to the court that such defendant will represent the defendant’s self, the clerk of the court shall promptly notify the defendant or the defendant’s counsel, the prosecutor and the magistrate that such request was filed. The prosecutor shall promptly notify any victim. For the purposes of this subsec-tion, victim shall include any victim of an alleged crime that resulted in the issuance of the arrest warrant, or, if the victim is deceased, the victim’s family, as defined in K.S.A. 74-7335, and amendments thereto.

          (3) Within five business days after receiving notice of a request for disclosure from the clerk of the court, the defendant or the defendant’s counsel and the prosecutor may submit to the magistrate, under seal, either:

          (A) Proposed redactions, if any, to the affidavits or sworn testimony and the reasons supporting such proposed redactions; or

          (B) a motion to seal the affidavits or sworn testimony and the reasons supporting such proposed seal.

          (4) The magistrate shall review the requested affidavits or sworn testimony and any proposed redactions or motion to seal submitted by the defendant, the defendant’s counsel or the prosecutor. The magistrate shall make appropriate redactions, or seal the affidavits or sworn testimony, as necessary to prevent public disclosure of information that would:

          (A) Jeopardize the physical, mental or emotional safety or well being of a victim, witness, confidential source or undercover agent, or cause the destruction of evidence;

          (B) reveal information obtained from a court-ordered wiretap or from a search warrant for a tracking device that has not expired;

          (C) interfere with any prospective law enforcement action, criminal investigation or prosecution;

          (D) reveal the identity of any confidential source or undercover agent;

          (E) reveal confidential investigative techniques or procedures not known to the general public;

          (F) endanger the life or physical safety of any person;

          (G) reveal the name, address, telephone number or any other information which specifically and individually identifies the victim of any sexual offense described in article 35 of chapter 21 of the Kansas Statutes Annotated, prior to their repeal, or article 55 of chapter 21 of the Kansas Statutes Annotated or K.S.A. 2013 Supp. 21-6419 through 21-6422, and amendments thereto;

          (H) reveal the name of any minor;

          (I) reveal any date of birth, personal or business telephone number, driver’s license number, nondriver’s identification number, social security number, employee identification number, taxpayer identification number, vehicle identification number or financial account information; or

          (J) constitute a clearly unwarranted invasion of personal privacy. As used in this subparagraph, ‘‘clearly unwarranted invasion of personal privacy’’ means revealing information that would be highly offensive to a reasonable person and is totally unrelated to the alleged crime that resulted in the issuance of the arrest warrant, including information totally unrelated to the alleged crime that may pose a risk to a person or property and is not of legitimate concern to the public. The provisions of this subparagraph shall only be used to redact and shall not be used to seal affidavits or sworn testimony.

          (5) Within five business days after receiving proposed redactions or a motion to seal from the defendant, the defendant’s counsel or the prosecutor, or within 10 business days after receiving notice of a request for disclosure, whichever is earlier, the magistrate shall either:

          (A) Order disclosure of the affidavits or sworn testimony with appropriate redactions, if any; or

          (B) order the affidavits or sworn testimony sealed and not subject to public disclosure.

          (6) (A) If the magistrate orders disclosure of the affidavits or sworn testimony with appropriate redactions, if any, to any person in accordance with the requirements of this subsection, then such affidavits or sworn testimony shall become part of the court record and shall be accessible to the public.

          (B) If the magistrate orders the affidavits or sworn testimony sealed and not subject to public disclosure in accordance with the requirements of this subsection, then such affidavits or sworn testimony shall become part of the court record that is not accessible to the public.

          (C) Any request for disclosure of affidavits or sworn testimony in accordance with the requirements of this subsection shall become part of the court record and shall be accessible to the public, regardless of whether the magistrate orders disclosure with appropriate redactions, if any, or sealing of the requested affidavit or sworn testimony.

History: L. 1970, ch. 129, § 22-2302; L. 1979, ch. 90, § 8; L. 1983, ch. 113, § 1; L. 2014, ch. 139, § 3; L. 2016, ch. 75, § 1; L. 2017, ch. 92, § 6; July 1.

22-2303. Prosecution begun by filing indictment or information; issuance of warrant; summons.

          (1) When an indictment is returned, as provided by K.S.A. 22-3011 and amendments thereto, a prosecution shall be deemed to have been begun. In misdemeanor cases, cigarette or tobacco infraction cases and traffic infraction cases a prosecution may be begun by filing an information in the district court. Such information shall be verified positively or shall be accompanied by affidavits stating the facts constituting the crime charged. When an information is filed under this section further proceedings shall be had only after the judge has determined from the information, or from an affidavit or affidavits filed with the information or from other evidence that there is probable cause to believe both that a crime has been committed and that the defendant has committed it.

          (2) Except in traffic infraction and cigarette or tobacco infraction cases, when a prosecution is begun by the filing of an indictment or information, upon which the judge has made a finding of probable cause as provided in subsection (1), a warrant for the arrest of the defendant shall issue forthwith unless otherwise directed by the court. In felony and misdemeanor cases, the court may order that a summons issue instead of a warrant. In traffic infraction and cigarette or tobacco infraction cases the court shall order that a summons issue instead of a warrant.

History: L. 1970, ch. 129, § 22-2303; L. 1971, ch. 114, § 3; L. 1984, ch. 39, § 36; L. 1996, ch. 214, § 28; L. 2007, ch. 56, § 1; July 1.

22-2304. Form of warrant or summons.

          (a) The warrant shall be signed by the magistrate and shall contain the name of the defendant, or, if his such defendant's name is unknown, any name or description by which such defendant can be identified with reasonable certainty. A defendant may be identified with reasonable certainty by a description of the defendant's unique DNA profile, including, but not limited to, an analyis of short tandem repeats (STRs) amplified by the polymerase chain reaction (PCR) technique. The warrant shall describe the crime charged in the complaint. The warrant shall command that the defendant be arrested and brought before a magistrate, as provided by law. The amount of the appearance bond to be required shall be stated in the warrant.

          (b) The summons shall be in the same form as the warrant except that it shall summon the defendant to appear before the court at a stated time and place. The summons shall be signed by the magistrate or the clerk of the court.

History: L. 1970, ch. 129, § 22-2304; L. 2011, ch. 39, § 1; July 1.

22-2305. Execution or service and return of warrant or summons.

          (1) The warrant shall be executed by a law enforcement officer. The summons may be served by any person authorized to serve a summons in a civil action.

          (2) The warrant may be executed or the summons may be served at any place within the jurisdiction of the state of Kansas.

          (3) The warrant shall be executed by the arrest of the defendant. The officer need not have the warrant in his possession at the time of the arrest, but upon request he shall show the warrant to the defendant as soon as possible. If the officer does not have the warrant in his possession at the time of the arrest, he shall then inform the defendant of the offense charged and of the fact that a warrant has been issued.

          (4) The summons shall be served upon a defendant by delivering a copy to him personally, or by leaving it at his dwelling house or usual place of abode with some person of suitable age and discretion then residing therein or by mailing it to the defendant's last known address.

          (5) The officer executing the warrant shall make return thereof to the magistrate before whom the defendant is brought. At the request of the prosecuting attorney any unexecuted warrant shall be returned to the magistrate by whom it was issued and shall be cancelled by him. On or before the date set for appearance the person to whom a summons was delivered for service shall make return thereof to the magistrate before whom the summons is returnable. At the request of the prosecuting attorney made at any time while the complaint is pending, a warrant returned unexecuted and not cancelled or a summons returned unserved or a duplicate thereof may be delivered by the magistrate to the officer or other authorized person for execution or service.

History: L. 1970, ch. 129, § 22-2305; July 1.

22-2306. Defective warrant.

          A warrant shall not be quashed or abated nor shall any person in custody for a crime be discharged from such custody because of any technical defect in the warrant.

History: L. 1970, ch. 129, § 22-2306; July 1.

22-2307. Domestic violence calls; written policies to be adopted by law enforcement agencies; contents.

          (a) All law enforcement agencies in this state shall adopt written policies regarding domestic violence calls as provided in subsection (b). These policies shall be made available to all officers of such agency.

          (b) Such written policies shall include, but not be limited to, the following:

          (1) A statement directing that when a law enforcement officer determines that there is probable cause to believe that a crime or offense involving domestic violence, as defined in K.S.A. 21-5111, and amendments thereto, has been committed, the officer shall, without undue delay, arrest the person for which the officer has probable cause to believe committed the crime or offense if such person’s actions were not an act of defense of a person or property as provided in K.S.A. 21-5222, 21-5223, 21-5225, 21-5230 or 21-5231, and amendments thereto;

          (2) a statement that nothing shall be construed to require a law enforcement officer to:

          (A)     Arrest either party involved in an alleged act of domestic violence when the law enforcement officer determines there is no probable cause to believe that a crime or offense has been committed; or

          (B)     arrest both parties involved in an alleged act of domestic violence when both claim to have been victims of such domestic violence;

          (3) a statement directing that if a law enforcement officer receives complaints of domestic violence from two or more opposing persons, the officer shall evaluate each complaint separately to determine if there is probable cause that each accused person committed a crime or offense and their actions were not an act of defense of a person or property as provided in K.S.A. 21-5222, 21-5223, 21-5225, 21-5230 or 21-5231, and amendments thereto;

          (4) a statement defining domestic violence in accordance with K.S.A. 21-5111, and amendments thereto;

          (5) a statement describing the dispatchers' responsibilities;

          (6) a statement describing the responding officers' responsibilities and procedures to follow when responding to a domestic violence call and the suspect is at the scene;

          (7) a statement regarding procedures when the suspect has left the scene of the crime;

          (8) procedures for both misdemeanor and felony cases;

          (9) procedures for law enforcement officers to follow when handling domestic violence calls involving court orders, including protection from abuse orders, restraining orders and a protective order issued by a court of any state or Indian tribe;

          (10) a statement that the law enforcement agency shall provide the following information to victims, in writing:

          (A)     Availability of emergency and medical telephone numbers, if needed;

          (B)     the law enforcement agency's report number;

          (C)     the address and telephone number of the prosecutor's office the victim should contact to obtain information about victims' rights pursuant to K.S.A. 74-7333 and 74-7335 and amendments thereto;

          (D)     the name and address of the crime victims' compensation board and information about possible compensation benefits;

          (E)     advise the victim that the details of the crime may be made public;

          (F)      advise the victim of such victims' rights under K.S.A. 74-7333 and 74-7335 and amendments thereto; and

          (G)     advise the victim of known available resources which may assist the victim; and

          (11) whether an arrest is made or not, a standard offense report shall be completed on all such incidents and sent to the Kansas bureau of investigation.

History: L. 1991, ch. 93, § 1; L. 1996, ch. 208, § 3; L. 2010, ch. 101, § 8; L. 2011, ch. 91, § 11; July 1.

22-2308. Same; liability.

          No law enforcement agency or employee of such agency acting within the scope of employment shall be liable for damages resulting from the adoption or enforcement of any policy adopted under this act, including, but not limited to, the policy and procedure for law enforcement officers to follow when handling a protective order issued by a court of any state or Indian tribe, unless a duty of care, independent of such policy, is owed to the specific individual injured.

History: L. 1991, ch. 93, § 2; L. 1996, ch. 208, § 4; July 1.

22-2309. Prosecution of crimes related to domestic violence; written policies adopted by prosecuting attorneys; contents.

          On and after January 1, 1997, all prosecuting attorneys, as defined in K.S.A. 22-2202, and amendments thereto, if such prosecuting attorney prosecutes crimes relating to domestic violence, shall adopt and put into effect written policies regarding the prosecution of crimes related to domestic violence. Such written policies shall include, but not be limited to, the effective prosecution of such crimes and the protection and safety of victims and such victim's children from domestic violence.

History: L. 1996, ch. 208, § 1; July 1.

22-2310. Prosecution of crimes related to stalking; written policies adopted by law enforcement agencies;contents.

          (a) All law enforcement agencies in this state shall adopt written policies regarding allegations of stalking as provided in subsection (b). These policies shall be made available to all officers of such agency.

          (b) Such written policies shall include, but not be limited to, the following:

          (1) A statement directing that the officers shall make an arrest when they have probable cause to believe that a crime is being committed or has been committed;

          (2) a statement defining stalking pursuant to K.S.A. 21-5427, and amendments thereto;

          (3) a statement describing the dispatchers’ responsibilities;

          (4) a statement describing the responding officers’ responsibilities and procedures to follow when responding to an allegation of stalking and the suspect is at the scene;

          (5) a statement describing the responding officers’ responsibilities and procedures to follow when responding to an allegation of stalking and the suspect has left the scene;

          (6) procedures for both misdemeanor and felony cases;

          (7) procedures for law enforcement officers to follow when handling an allegation of stalking involving court orders, including any protective order as defined by K.S.A. 21-5924, and amendments thereto;

          (8) a statement that the law enforcement agency shall provide the following information to victims, in writing:

          (A) Availability of emergency and medical telephone numbers, if needed;

          (B) the law enforcement agency’s report number;

          (C) the address and telephone number of the prosecutor’s office the victim should contact to obtain information about victims’ rights pursuant to K.S.A. 74-7333 and 74-7335, and amendments thereto;

          (D) the name and address of the crime victims’ compensation board and information about possible compensation benefits;

          (E) advise the victim that the details of the crime may be made public;

          (F) advise the victim of such victims’ rights under K.S.A. 74-7333 and 74-7335, and amendments thereto; and

          (G) advise the victim of known available resources which may assist the victim; and

          (9) whether an arrest is made or not, a standard offense report shall be completed on all such incidents and sent to the Kansas bureau of investigation.

          (c) No law enforcement agency or employee of such agency acting within the scope of employment shall be liable for damages resulting from the adoption or enforcement of any policy adopted under this section.

History: L. 2008, ch. 137, § 1; L. 2011, ch. 30, § 113; July 1.

22-2311. Prosecution of crimes related to stalking; written policies adopted by prosecuting attorneys; contents.

          On and after January 1, 2009, all prosecuting attorneys, as defined in K.S.A. 22-2202, and amendments thereto, if such prosecuting attorney prosecutes crimes relating to stalking, shall adopt and put into effect written policies regarding the prosecution of crimes related to stalking. Such written policies shall include, but not be limited to, the effective prosecution of such crimes and the protection and safety of victims and such victim’s children from stalking.

History: L. 2008, ch. 137, § 2; July 1.