Case Update List Archive 1998-2000

Quick Links to prior year lists.

Full text of United States Supreme Court decisions: http://supct.law.cornell.edu/supct/

Full text of 10^th Circuit decisions: http://ca10.washburnlaw.edu/

Full text of Kansas Appellate decisions: http://www.kscourts.org/Cases-and-Opinions/opinions/

2000 Police Case Update List

ADA

Krocka v. City of Chicago, 203 F.3d 507 (7^th Cir. 2000). Police department did not violate ADA by ordering a fitness for duty evaluation and monitoring program after he began taking Prozac. Department did not "regard him" as disabled.

Calloway v. Glassboro, N.J. Police Department, ___ F.3d ___ (No. 98-3139, 2/8/00). In custody questioning at police station is an "activity" covered by Title II of the ADA and § 504 of the Rehabilitation Act. Questioning deaf and illiterate person without the benefit of a certified American Sign Language Interpreter (agency provided an uncertified one) violates the act. See 28 C.F.R. § 35.160. Opinion does not require street officers making an arrest to provide a qualified interpreter.

Arrest

State v. Rosas, ___ Kan. App. 2d ___, 17 P.3d 379 (2000). Failure to notify a foreign national of their right to contact their consul pursuant to 36(1)(b) of the Vienna Convention does not require suppression of evidence. Also in-custody statements were freely, voluntarily and knowing given, and consent to search is voluntary despite the per se violation of K.S.A. 75-4351(e) which requires appointment of an interpreter. See also United States v. Minjares-Alvarez, ___ F.3d ___ (10^th Cir. No. 00-2004, filed 7/27/2001).

State v. Pritchett, 270 Kan. 125, 130-31, 11 P.3d 1125 (2000). Revenue agent who approached defendant because of his "youthful appearance" and cup of amber liquid in his hand had reasonable suspicion to believe defendant was committing the crime of minor in possession of alcohol. Thus, officer could detain defendant while he verified his age.

Oliver v. Woods, et al., 209 F3d. 1179 (10^th Cir. 2000). Officers were entitled to qualified immunity where they detained, then arrested plaintiff on somewhat shaky reasonable suspicion to believe he was involved in illegal oil dumping or trespass. Suspect refused to identify himself or present a driver's license as required by a statute similar to K.S.A. 22-2402(1). Concluding there was reasonable suspicion for an investigatory detention, the court held officers could have believed there was probable cause to believe plaintiff committed interference with an arrest or detention and/or disobeying a lawful order, therefore arrest was lawful.

Illinois v. Wardlow, 528 U.S. 119, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000). Flight from a clearly identified police officer in an area known for narcotics trafficking establishes reasonable suspicion to support a Terry stop. After stopping Wardlow, officers conducted a Terry pat down of an opaque bag he was carrying and discovered a .38 revolve and five live rounds. Wardlow, a convicted felon, was properly convicted of unlawful use of a weapon by a felon.

State v. Beal, 26 Kan. App.2d 837, 994 P.2d 669 (2000). An arrest warrant not only allows officers to search the house of the person named in the warrant, but also a detached garage if officers have a reasonable basis for believing the person named in the warrant will be found therein.

Civil & Criminal Liability

Sterling v. Borough of Minersville, Pa., 232 F.3d 190 (3^rd Cir. 2000). Officer's threat to disclose arrestee's suspected homosexual orientation to his grandfather, which threat resulted in the arrestee's suicide, is actionable as a privacy violation and officer is not entitled to qualified immunity. Officer should have known that sexual orientation is an intrinsically private matter.

State v. Anderson, 270 Kan. 68, 12 P.3d 883 (2000). District court erred in dismissing involuntary manslaughter charges against person who was fleeing from police on a motorcycle. Although trooper failed to exercise due care for the safety of others and was guilty of vehicular homicide, his negligence or criminal responsibility is not a defense to charges against the defendant. Officers have a duty to apprehend and arrest law violators.

State v. Legg, ___ Kan. App. 2d ___, 13 P.3d 355 (2000). Overland Park Police Officer who searched 16 and 17 year old girls, then released them, was convicted of four counts of misdemeanor sexual battery after grabbing their buttocks, groping them and cupping their breasts. Officer initially denied having contact with the girls, but later admitted to searching them, albeit non-sexually.

Brown v. Gray, 227 F.3d 1278, 1286 (10th Cir. 2000). Off-duty Denver officer in street clothes in his own private vehicle had a traffic dispute with another motorist. Officer approached other vehicle, identified himself as an officer (although he did not show badge or ID), and pointed his gun at the motorist. Motorist drove off and officer pursued him. After another stop and verbal exchange, motorist drove off again. Officer fired several shots into the car and hit the motorist about 3 times, badly injuring him. Officer claimed motorist brandished a weapon at him, thus he attempted arrest. He claimed motorist appeared to be reaching for a weapon and attempting to flee. Denver has an "always armed/always on duty" policy. Motorist sued officer & Denver alleging various state and federal claims, including a civil rights claim against Denver for failure to train. Motorist alleged training program made no distinction between off-duty and on-duty scenarios, despite the disadvantages an officer has while off-duty (no patrol car, uniform, radios, handcuffs, etc). Officer cross-claimed against Denver for indemnification and defense costs. Motorist and officer settled prior to trial for $150,000. Officer assigned motorist cross-claim for defense costs against Denver. Jury found motorist proved failure to train claim, but found officer was not acting within the scope of his employment. Judgement for motorist for $400,000. On appeal, 10th Circuit held there was more than sufficient evidence for jury to determine training program was inadequate, this was a usual and recurring situation, the failure to train constituted deliberate indifference, and that the failure to train was the cause of the motorists injuries. Also, the district court erred in denying the motorist judgment for approximately $123,300 in defense costs the officer assigned to him. Case was remanded for further consideration and attorney fees.

Crownover v. City of Lindsay, Oklahoma, 229 F.3d 1162, 2000 WL 1234852 (10th Cir. unpublished Sept. 1, 2000). City is not liable for civil rights violation arising from a sexual assault committed by a police lieutenant who went to the woman's home a few hours after arresting her husband on drug charges. Plaintiffs must show the officer was acting pursuant to a city policy or custom, and here there was no such evidence. Summary judgment for defendant affirmed.

Kirk v. City of Shawnee, Kansas, ___ Kan. App. 2d ___, 10 P.3d 27 (2000). Public duty doctrine protects City of Shawnee from plaintiff's claims that police failed to protect her from her estranged husband.

Childress v. Oklahoma, ___ F.3d ___ (10^th Cir. No. ______) profiled in 10 K.L. 209, p. 21, week of April 30-May 6, 2000). Absent evidence that law enforcement officers intended to harm innocent hostages when trying to recapture escaped convicts, officers did not violate hostages Fourth Amendment rights.

Livoti v. United States, 196 F.3d 322 (2d Cir.), cert. denied (No. 99-1344, 5/15/00). No error in applying an upward sentencing departure where a police officer killed a person by applying a choke hold during an unjustified arrest for playing football in the street.

Driver's License Suspensions

Hemphill v. Kansas Dept. of Revenue, 270 Kan. 83, 11 P.3d 1165 (2000). Manufacturer’s operation manual for the Intoxilyzer 5000 is not required to be filed by the Dept. of Revenue as a rule or regulation pursuant to K.S.A. 77-416(a), and availability of officer’s training manual for purchase from KDHE complies with due process.

State v. Hershberger, ___ Kan. App.2d ___, 5 P.3d 1004 (2000). On an arrest for driving while suspended, failure to conduct a probable cause hearing within 48 hours should not result in dismissal unless the defendant shows prejudice to his ability to prepare his defense. The state's requirement that a person have a valid drivers' license does not violate the Constitutional right to travel. "An officer's attempt to elicit the name and address of a person legitimately detained does not seek evidence of a testimonial nature bearing on the commission of a crime and, therefore, does not implicate the privilege against self-incrimination." Booking information (fingerprints and photographs) are not testimonial in nature.

Badgley v. Kansas Dept. of Revenue, ___ Kan. App. 2d ___, 7 P.3d 326, (2000). Under K.S.A. 1999 Supp. 8-1015, only the Kansas Department of Revenue is authorized to place restrictions on a person's driving privileges. The district court does not have jurisdiction to modify the restrictions imposed on a person's driving privileges by the Kansas Department of Revenue under K.S.A. 1999 Supp. 8-1015. Badgley's request to be allowed to drive to his former wife's residence for visitation cannot be granted.

Driving While Suspended

State v. Edwards, ___ Kan. App. 2d ___, 15 P.3d 855 (2000). Amendment to K.S.A. 8-262(a) decreasing penalty from a felony to a misdemeanor does not apply retroactively to defendant's May 5, 1999, offense. Offense is a misdemeanor only on and after July 1, 1999. Law in effect at the time the crime was committed controls, not that in effect on the conviction date.

State v. Gee, ___ Kan. App. 2d ___, ___ P.2d ___ (No. 83675, filed 7/14/2000). In order for the "hard 90" sentence in K.S.A. 8-262(a)(4) [or STO 194(a)(4)] to apply, the person must be suspended for a conviction of K.S.A. 8-1567, not just a violation of the statute. Here, defendant failed (refused?) a test on 6/18/98 and during the one year administrative suspension failed another test on 1/21/99 and was charged with DUI & DWS. The DWS sentence on the 1/21/99 crime was not required to be a mandatory 90 days. The legislature can enact an increased penalty for driving after being suspended at an administrative hearing, but it has not chosen to do so.

State v. Hershberger, ___ Kan. App.2d ___, 5 P.3d 1004 (No. 82,400 filed 5/5/2000). Statute requiring driver's licenses and vehicle registrations doe not impermissibly impair a person's constitutional right to travel in violation of the Fourteenth Amendment. Also, if a person had actual notice their license was suspended, it does not matter where the Department of Revenue sent the notice of suspension nor whether the defendant received it.

State v. Bowie, 268 Kan. 794, 999 P.2d 947 (2000). Persons cannot be charged with and convicted of driving while suspended pursuant to K.S.A. 1999 Supp. 8-262(c) (or STO 194) if they have never applied for a driver's license. The appropriate charge is driving without a valid driver's license pursuant to K.S.A. 8-235 (or STO 192).

Due Process

Apprendi v. New Jersey, 500 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). A New Jersey hate crime law provides for an "extended term" of imprisonment if the trial judge finds, by a preponderance of the evidence, that "[t]he defendant in committing the crime acted with a purpose to intimidate an individual or group of individuals because of race, color, gender, handicap, religion, sexual orientation or ethnicity." N. J. Stat. Ann. §2C:44-3(e). The Court struck down the law on the ground that the Due Process Clause of the Fourteenth Amendment requires that a factual determination resulting in an increased prison sentence be made by a jury on the basis of proof beyond a reasonable doubt. See also Blakely v. Washington, 124 S.Ct. 2351 (2004)(same).

DUI

State v. Ludes, ___ Kan. App. 2d ___, 11 P.3d 72 (2000). Anonymous tip that someone on a motorcycle appeared to be injecting something into their arm with a needle did not constitute reasonable suspicion to stop the defendant. There was insufficient corroboration because all the officer saw was a guy on a motorcycle in the general area. Although safety reasons can justify a stop, driver appeared to be in complete control of the motorcycle and had no problem operating it.

State v. Gerschoffer, ___ Ind.App. ___ (No. 71A05-0003-CR-116, filed 11/28/00). Although Michigan Dep't. of State Police v. Sitz, 496 U.S. 444 (1990) allows suspicionless sobriety checkpoints under the federal constitution, the Indiana constitution grants greater rights and such checkpoints are unconstitutional under the state constitution.

State v. Baker, ___ Kan. ___, 2 P.3d 786 (No. 83,019 filed 6/2/2000). In a criminal DUI case, officer's failure to check the box on the DC-27 form stating the officer had probable cause to believe the defendant was driving a vehicle while under the influence of alcohol does not require suppression of the blood test of 0.199. While failure to check a box will result in form itself not being admissible to prove statements that were not checked, the state can satisfy its burden of proof through competent testimony.

City of Colby v. Cranston, ___ Kan. App.2d ___, 7 P.3d 300 (2000). When a defendant requests a no-adverse inference instruction on his refusal to testify, PIK Crim. 3d 52.13 is inadequate because it does not contain a compulsion component. Evidence of a breath test of 0.129 taken without 2 hours of operating a vehicle is sufficient to convict under subsection 30(a)(2). City does not have to prove alcohol concentration at the actual time of driving. Finally, wife's statement to officer that she could not move the car because she had been drinking too was properly admitted as a present sense impression under K.S.A. 60-460(d)(1).

State v. Hartman, 26 Kan.App.2d 928, 991 P.2d 911 (2000). Officer's assurance that hospital would draw blood was mistaken but not unreasonable under circumstances. Consent to breath test was not coerced and officer engaged in no misconduct, so exclusionary rule does not prohibit introduction of test results.

State v. Creamer, 26 Kan. App.2d 914, 996 P.2d 339 (2000). DUI, involuntary manslaughter and injury to a pregnant woman are all strict liability offenses and do not require evidence of intent.

Enslow v. Kansas Dept. of Revenue, 26 Kan. App.2d 953, 996 P.2d 361 (2000). DC-27 does not have to be served while suspect is still in custody. Here, the defendant failed a breath test. The officer incorrectly filled out the DC-27 and served it on defendant. The officer later filled out a new DC-27 and served it on defendant after his release from jail, destroying the original. District court reversed suspension stating notice problem created fatal errors. Court of appeals reversed, holding amended DC-27 was appropriate and was personally served, which is all the statute requires.

Gross v. Kansas Dept. of Revenue, 26 Kan. App.2d 847, 994 P.2d 666 (2000). An officer does not need probable cause to believe a person is driving under the influence to request a preliminary breath test (PBT). Pursuant to K.S.A. 8-1012(a), the officer only needs reasonable grounds to believe the person has alcohol in their body. Here, driver was stopped at a checklane. The officer detected the odor of an alcoholic beverage and defendant's glazed eyes. Plus, she admitted having a few beers. These were reasonable grounds to request a PBT.

City of Manhattan v. Larson, 26 Kan. App.2d 851, 994 P.2d 1087 (2000). Officer's mistaken belief that truck tag had expired on December 31 (grace period under K.S.A. 8-134 allows until February 15 to renew) is reasonable suspicion for a traffic stop resulting in a DUI arrest, even though officer was unaware of grace period.

Employment & Discipline

Lanning v. SEPTA, 2000 U.S. Dist. LEXIS 17612 (E.D. Pa., Dec. 7, 2000). A transit authority's police force did not discriminate against women by adopting a physical fitness test that requires all applicants to run 1.5 miles in 12 minutes or less, even though it has a disparate impact and excludes about 93% of women applicants. Requirement is a bona-fide occupational qualification for this unique, foot-based patrol. Case history: Originally decided at: 1998 U.S. Dist. Lexis 9388, 1998 WL 341605 (E.D. Pa. 1998); Reversed at: 181 F.3d 478 (3rd Cir. 1999); Certiorari denied at: 145 L.Ed. 2d 840, 120 S.Ct.970 (2000).

City of Virginia Beach v. Harris, 259 Va. 220, 523 S.E. 2d 239 (2000). City did not violate Officer's rights by terminating his employment after he had his Lt. arrested for obstruction. Case does not fit within the public policy exception to the employment at will doctrine, which applies when there is an explicit statement of public policy or a law that involves property rights, personal freedoms, health safety or welfare, and the employee must be a member of the class to be protected by the statute. Obstruction is not such a statute.

Collazo v. City of New York, (No. 99-7967 2d Cir.) 2000 U.S. App. Lexis 6120. Termination upheld for two NYPD officers who secretly had precinct mascot Fred the beagle euthanized by taking him to the ASCPA and reporting him as a stray. One officer gave a false name, phone number and badge number. Ex officers sued for race and national origin discrimination. Court found there was no evidence that terminations were based on race or national origin reasons.

Evidence

State v. Lamae, 268 Kan. 544, 998 P.2d 106 (2000). Opinion gives step-by-step instructions for the heat reduction method of methamphetamine production. It also states "[t]he process is very dangerous. Not only are the chemicals used at each stage very flammable in and of themselves, but their fumes can also be flammable." The Kansas Supreme Court held that failure to preserve the hazardous waste evidence (meth lab components) did not require suppression of the evidence because there was no evidence of bad faith on the part of the state. Where the state fails to preserve evidentiary material "of which no more can be said than it could have been subjected to tests, the results of which might have exonerated the defendant," requiring a defendant to show bad faith "limits the extent of the police's obligation to preserve evidence to reasonable bounds and confines it to that class of cases where they interests of justice most clearly require it, i.e., those cases in which the police themselves by their conduct indicate that the evidence could form a basis for exonerating the defendant." Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988). See also State v. Finley, ___ Kan. ___, ___ P.3d ___ (No. 85709, filed 3/15/2002).

Firearms

United States v. Reddick, ___ F.3d ___ (10th Cir. No. ___, week of 2/20 - 2/26 2000). Due process does not require a defendant to know that possession of a firearm while subject to a domestic violence restraining order is illegal under 18 U.S.A. § 922(g)(8).

First Amendment

Boroff v. Van Wert City Board of Education, 220 F.3d 465 (6^th Cir. 2000). School board did not violate student's First Amendment rights to freedom of expression when it banned (Marilyn Manson) T-shirts and other clothing with offensive illustrations, drug, alcohol or tobacco slogans. Court distinguished Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969)(striking down ban on black arm bands to protest Vietnam war). Applied standard from Bethel School District No. 403 v. Fraser, 478 U.S. 675, 106 S.Ct. 3159, 92 L.Ed.2d 549 (1986)(school district permissibly disciplined student for offensively lewd & indecent speech at a school assembly) & Hazelwood School District v. Kuhlmeier, 484 U.S. 260, 108 S.Ct. 562, 98 L.Ed.2d 592 (1988)(school district did not violate First Amendment by exercising editorial control over content of school-sponsored publication).

International Ass'n of Firefighters, Local No. 3808 v. City of Kansas City, 220 F.3d 969 (8^th Cir. 2000). City of Kansas City violated the First Amendment by enacting ordinance prohibiting supervisory personnel from belonging to same union as non-supervisory personnel.

Haddad v. Wall, ___ Cal. ___ (C.D. Cal. No. 98-0130 RT, filed 8/1/00). California statute (Cal. Civ. Code § 47.5) allowing police officers to sue for defamation for lodging false misconduct complaints against the officer discriminates on the basis of content and thus violates the First Amendment.

Santa Fe Independent School Dist. v. Doe, 530 U.S. ___, 120 S.Ct. ___, 147 L.Ed.2d 295 (No. 99-62, filed 6/19/2000). School district's policy permitting a student-led and student-initiated prayer over the P.A. system at football games constitutes an establishment of religion and violates the First Amendment.

Beach v. City of Olathe, 97 F.Supp.2d 1065 (D.Kan. 19__). Police officer's statements touched upon matters of public concern and were protected by the First Amendment.

Bunker v. City of Olathe, 97 F.Supp.2d 1241 (D.Kan. 19__). Defendants were not entitled to immunity on police officer's § 1983 claims of retaliation for exercising his right to free speech.

Hill v. Colorado, 530 U.S. ___, 120 S.Ct. ___, 147 L.Ed.2d 597 (No. 98-1856 filed 6/28/2000). The Court upheld a Colorado statute (Colorado Rev. Stat. sect.18-9-122(3)) making it unlawful for a person to knowingly approach within 8 feet of another person without that person's consent in order to pass a leaflet, display a sign, orally protest, etc. if such contact occurs within 100 feet of a health care facility. The Court acknowledged the demonstrators valid First Amendment interests. However, it held that statute was a valid time, place and manner restriction. The state had a significant and legitimate interest protecting those entering health care facilities from unwanted communication, and the statute left open ample alternate channels of communications.

United States v. Playboy, ___ U.S. ___, ___ S.Ct. ___, 146 L.Ed.2d 865 (No. 98-1682, filed May 22, 2000). Section 505 of the Telecommunications Act of 1996, 47 U.S.C. § 561, requires cable television operators primarily dedicated to sexually oriented programing to either fully block those channels, or limit their transmission to hours when children are unlikely to be viewing. The Court struck down the law as violative of the First Amendment because the law failed to employ the least restrictive means for addressing the problem.

FLSA

Christensen v. Harris County, Texas, 529 U.S. 576, 120 S.Ct. 1655, 146 L.Ed 2d 621 (2000). A public agency governed by the compensatory time provisions of the Fair Labor Standards Act (29 U.S.C. 207(o)), may, absent a preexisting agreement, require its employees to use accrued compensatory time. Affirming Moreau v. Harris County, Texas, 158 F.3d 241 (5^th Cir. 1998), and disagreeing with a Department of Labor opinion letter on the same subject.

Gangs

State v. Pham, ___ Kan. App. 2d ___, ___ P.3d ___ (No. 82596, filed 9/1/2000). Asian gang banger pointed gun at someone's head. Was arrested a couple weeks later and a gun was found in car. Prosecutor couldn't show it was gun used in aggravated assault, and it denied the defendant a fair trial when she tried to introduce it in evidence. No error to allow detective to testify about assignment to gang unit and his work, but where there was no connection to the defendant, admission of gang evidence was an abuse of discretion. "Gang evidence may be admissible to demonstrate witness bias, i.e., that fellow members of gangs could lie to protect one another. [State v. Roaden], 26 Kan. App. 2d at 445. It also may be admissible "to show a motive for an otherwise inexplicable act." If the evidence is to be used to support motive, however, the prosecution must first demonstrate that gang membership or activity is related to the crime charged. See State v. Sims, 265 Kan. 166, Syl. ¶¶ 5, 960 P.2d 1271 (1998); see also State v. Jamison, 269 Kan. ___, ___ P.3d ___ (No. 81,644, filed July 14, 2000) (evidence of gang involvement not admissible under K.S.A. 60-455; admissible if relevant to motive, identity)."

State v. Jamison, ___ Kan. ___, ___ P.3d ___ (No. 81644, filed July 14, 2000) Evidence of gang involvement is not evidence of a crime or civil wrong under K.S.A. 60-455, and is admissible if relevant.

Habitual Violator

State v. Logan, ___ Kan. App. 2d ___, ___ P.3d ___ (No. 83,831 filed 12/15/2000). Following State v. Bowie, 268 Kan. 794, 999 P.2d 947 (2000), court of appeals holds that persons who have never had a driver's license cannot be convicted of driving while habitual in violation of K.S.A. 8-287. Only appropriate charge is driving without a valid driver's license pursuant to K.S.A. 8-235 (or STO 192).

State v. Williams, 27 Kan. App. 2d 69, 998 P.2d 121 (2000). Jury instruction stated, "Deliberate ignorance of Mr. Williams' status as a habitual violator resulting from his acts or failure to act with a conscious purpose to avoid notification of such status constitutes actual knowledge of such status." Instruction was not clearly erroneous and does not create an impermissible mandatory presumption. See Lewis, 263 Kan. at 858.

Identification

State v. Maybin, 27 Kan. App. 2d 189, 2 P.3d 179 (2000). One person show ups, while not a favored method of identification, are permissible when they are not unnecessarily suggestive and they occur shortly after the commission of an offense because time is a crucial element when there is an eyewitness who can identify the suspect and any delay could impede the police investigation. Factors that will be considered include the witnesses opportunity to view the criminal at the time of the crime, the level of certainty demonstrated by the witness at the confrontation and the length of time between the crime and the confrontation.

Interrogation

State v. Rosas, ___ Kan. App. 2d ___, ___ P.3d ___ (No. 84,346 filed 12/22/2000). Failure to notify a foreign national of their right to contact their consul pursuant to 36(1)(b) of the Vienna Convention does not require suppression of evidence. Also in-custody statements were freely, voluntarily and knowing given, and consent to search is voluntary despite the per se violation of K.S.A. 75-4351(e) which requires appointment of an interpreter.

Wardlow v. State, 2 P.3d 1238 (Alaska 2000). Despite statutory right to immediate telephone calls, police officer has no duty to provide arrestee with officer's own cellular phone to contact an attorney. Officer safety considerations do not require immediate, mobile telecommunications due to the volitility of the situation until they reach the place of detention. Here a rape suspect was arrested and being transported to the police station so he could call his attorney. When the officer told the suspect where they were going the suspect said, "About all they can do for me at Tudor and fucking Bragaw is lick the shit off my dick." No error to admit the voluntary, non-coerced statement into evidence.

Dickerson v. United States, 530 U.S. 428, 120 S.Ct. 2326, 147 L.Ed.2d 405 (2000). Congress cannot overturn through legislation a constitutional holding of the court. The standard for admissibility is whether the suspect received Miranda warnings before being interrogated, not the standard set forth in 18 U.S.C. § 3501 where the admissibility of such statements turns only on whether or not they were voluntarily made

State v. Hershberger, ___ Kan. App.2d ___, 5 P.3d 1004 (No. 82,400 filed 5/5/2000). Police and court officials did not violate the defendant's Fifth Amendment rights by penalizing him for failing to state his identity in court, nor in fingerprinting and photographing him during book-in at the jail. Once validly arrested, submission to fingerprinting and photographing are not testimonial in nature.

United States v. Hudson, 210 F.3d 1184 (10^th Cir. 2000). INS agents did not violate defendants' Miranda rights during routine border stop and detention to ask questions concerning vehicle ownership, cargo, destination, and travel plans. Although agents had a "be on the lookout on the vehicle for narcotics transportation, none of the questions were so "distinctly accusatory" as to convert the encounter into custody. The questions were asked over a relatively brief ten-minute time period and the entire encounter prior to arrest lasted no more than fifteen minutes.

State v. Lewis, ___ Kan.App.2d ___, 5 P.3d 531 (No. 81,171 filed 4/21/2000). A defendant's failure to object at trial to elicited testimony about the defendant's silence following Miranda warnings in violation of Doyle v. Ohio, 426 U.S. 610, 618, 49 L. Ed. 2d 91, 96 S. Ct. 2240 (1976), precludes the defendant from raising the issue on appeal. Defendant testified that he was paid $5 and a black watch for using his truck to help another move some belongings. The black watch was stolen in a burglary. On cross-examination, the State asked the defendant about his recollection of the night of the robbery. When the defendant admitted that he did not tell an officer about receiving the $5 and the black watch as payment, he explained by stating, "I told Detective Wise that I chose not to say nothing further until I had a lawyer present. That is why it's not in his report." In the course of explaining the omission, the defendant stated he had signed the Miranda rights form "under duress" because he was intoxicated and did not want to talk without a lawyer present, but the detective had told him he could not have a lawyer until he signed the form. The court held there was no Doyle violation and even if there were, there was no contemporaneous objection.

Combs v. Coyle, ___ F.3d ___ (6^th Cir. No. 97-4369, filed 2/23/00). An accused's silence prior to receiving Miranda warnings may not be used against him in the prosecution's case-in-chief. Defendant gunned down his girlfriend and her mother, and was wounded by an off-duty officer. Another officer arrived, took shotgun from Defendant, and asked what happened. Defendant did not say anything. Question was repeated and Defendant said "talk to my lawyer." Court held statement should not have been admitted.

Miscellaneous

Diesel v. Town of Lewisboro, ___ F.3d ___ (2d Cir. Nos. 99-7831 & 99-7840, filed 2000). Officer's selective enforcement claim under the equal protection clause cannot be based on other officers refusal to close their eyes to serious misconduct in accordance with the tradition of the "blue wall of silence." Investigation of Diesel being passed out or asleep in a police car was not in retaliation for his cooperation in an internal affairs investigation, and was reasonable under the circumstances. Jury verdicts in Diesel's favor in the amounts of $500,000 (compensatory) and $155,000 (punitive) and $1.5 million reduced to $200,000 are set aside.

State v. Calvert, ___ Kan.App.2d ___, 5 P.3d 537 (2000). Kansas does not recognize a defense of innocent possession of marijuana except under circumstances prescribed by K.S.A. 1999 Supp. 65-4162(a). Thus, court did not err in refusing jury instruction that would allow acquittal if defendant possessed it solely for purposes of disposal.

In Re One 1993 Chevrolet Corsica, VIN # 1G1LT5345PY166194, 268 Kan. 759, 999 P.2d 927 (2000). District judge did not abuse discretion in ordering forfeited car to be returned and requiring city of Dodge City to pay all towing and storage fees. Owner Rodriguez left it with a car shop then left the country. She returned and found it in a parking lot & reported it stolen. Police seized it and held it for evidence. Two weeks later, Rodriguez reported car wasn't stolen but was sold to Robles by Rodriguez's estranged husband, Torres. Robles requested the car be returned, but claim was denied because Torres was being investigated for dealing in stolen vehicles. Torres pled on 9/8/98 and car was no longer needed as evidence. County attorney filed motion to dispose of car pursuant to K.S.A. 22-2512(2)(g) [now (3)(g)]. At hearing on 9/30/98, Rodriguez testified she wished to ratify Torres' sale of the car. County attorney still would not release car to Robles, even after district court ordered it be returned. Court held that Robles committed no wrongdoing and was a bona fide purchaser.

Natl. Congress for Puerto Rican Rights v. City of N.Y., ___ F.3d ___ (2000 U.S. Dist. LEXIS 6083 (S.D.N.Y.)). Statistics on racial profiling requested by city council are not protected from discovery under either the attorney-client and/or the work-product privileges. The documents in dispute were not prepared for the purpose of obtaining legal advice, nor"because of" pending or anticipated litigation."

State v. Wright, 26 Kan. App. 2d 879, 995 P.2d 416 (2000). City police officer can use a Uniform Complaint and Notice to Appear to require the defendant to appear in district court.

Denius v. Dunlap, ___ F.3d ___ (7^th Cir. No. 99-1402, filed 4/11/00). Termination of a public employee's job for refusing to sign release allowing access to "all records" about himself, including attorney-client, medical and financial information, violates the employee's Free Speech and Due Process rights. However, only the due process interest in refusing to disclose medical information was clearly established in 1996, so defendants were entitled to qualified immunity.

City of Erie v. Pap's A.M. tdba "Kandyland, 529 U.S. ___,120 S.Ct. 1382, 146 L.Ed.2d 265 (2000). Public indecency ordinance that proscribes nudity in public places does not violate the First and Fourteenth Amendments. The ordinance is content-neutral and satisfies the four-part test in United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968).

Case Name Unknown, Profiled in 10 K.L. 8 (week of 3/26 to 4/1/2000). 10^th Circuit lets stand U.S. District Judge Kane's order allowing U.S. Marshals to seize Denver Police Department's Internal Affairs files as part of a police brutality suit filed by Matthew Combs. Combs is suing Denver Police Officer Timothy McCleer, former Police Chief Tom Sanchez and the City of Denver. Combs claims McCleer beat him unconscious after an accident on September 4, 1998. The city of Denver had failed to comply with an earlier discovery order to hand the files over to Comb's lawyer. Kane also fined the City $10,000 and ordered the files to be turned over by March 27, 2000.

Rucker v. Davis, 203 F.3d 627 (9^th Cir. 2000), reversed 237 F.3d 1113 (9th Cir. en banc 2001), 9th Circuit reversed Rucker v. Davis, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 00-1781, filed 3/26/2002). HUD one strike provision for drug activity codified in 42 U.S.C. § 1437d(l)(6) and 24 C.F.R. 966.4(f)(12)(i)(B) and (l)(2)(ii)(B) can be enforced against innocent tenant.

Reno v. Condon, 525 U.S. ___, 120 S.Ct. 666, 145 L.Ed.2d 587 (2000). The 1994 Driver's Privacy Protection Act does not violate Congress' powers under the commerce clause, nor violate the 10^th Amendment.

Off-Duty Intervention

State v. Epps, ___ Kan. App. 2d ___, 9 P.3d 1271 (2000). Off-duty officer in uniform who arrested suspect on misdemeanor warrant while working as a mall security guard was acting as a law enforcement officer during the arrest. Search of suspect's pockets incident to arrest was authorized.

Search & Seizure

Unites States v. King, ___ F.3d ___ (10th Cir. No. 99-3275, filed 08/23/00). Lawrence officers had information that "Black" and "Red" were selling drugs out of 1206 Pennsylvania. They also learned that "Black" (King) had a warrant for failure to appear at sentencing on a federal drug charge involving a firearm. A CI had also told police that when at the residence a couple weeks before, "Black" threatened her boyfriend with a firearm. Police obtained a search warrant to search for King. They knocked on the back door, and when King answered, they entered, announcing "police, search warrant, get down." They also tackled King. Once he was in custody, they performed a protective sweep of the house, and saw illegal drugs and firearms that were seized pursuant to a second warrant. King alleged the manner of executing the first warrant was unreasonable, and the second warrant resulted from an illegal protective sweep. The Circuit rejected these arguments, finding a no-knock entry was reasonable based on the presence of firearms, King's known propensity to use them, and the fact that Black and Red were both gang members. The Court said even if the sweep was illegal, nothing was seized as a result of it, so there was nothing to suppress.

http://ca10.washburnlaw.edu/cases/2000/08/99-3275.htm

State v. Dwyer, ___ Kan.App.2d ___, ___ P.3d ___ (No. 83,746, filed 12/8/2000). Officers conducting a knock-and-talk smelled burning marijuana and asked Dwyer if he wanted to show them where it was. Dwyer responded "yeah, okay," and turned and entered the apartment, leaving the door open behind him. Officers interpreted that as an invitation to enter, and they did, finding more drugs. Dwyer contended that officer ordered him to show them where the marijuana was; they did not ask him. He also claims he did not consent to their entry, even though he did not protest it. Refusing to reweigh the conflicting evidence, the Court of Appeals affirmed denial of a motion to suppress. The court held that Dwyer was not detained during the knock and talk. "The politely and calmly executed "knock and talk" conversation outside the apartment did not constitute an investigatory detention. See United States v. Park-Swallow, 2000 WL 82183 (D. Kan., April 18, 2000) (noncoercive "knock and talk" a consensual encounter); see also State v. Reason, 263 Kan. 405, 412, 951 P.2d 538 (1997) (officers' initial approach to sleeping defendant in parked automobile a voluntary encounter)."

United States v. Davis, ___ F.3d ___ (D.C. Cir. No. 00-3016 filed 12/29/2000). Information police obtained from a citizen 911 call describing a man fleeing the scene of a shooting provides sufficient reasonable suspicion to stop suspect who fit description, even though the government failed to produce a tape of the call.

United States v. Moore,___ F.3d ___ (1^st Cir. No. 00-1174 filed 12/29/2000) Officers who were justified in making investigatory stop of defendant in high crime area may also require a suspect to reveal object he is hiding in his hand, which was obscured from officers' view.

United States v. Hishaw, 235 F.3d 563, 570-71 (10^th Cir. 2000). Stop and pat-down of defendant was justified by officer's reasonable belief that defendant was engaging in drug sales while having "lots of contact" with people in the parking lot, in view of his recent narcotics arrest and presence at an apartment where police were about to execute a search warrant. Pat-down was reasonable based on officer's experience that drug dealers are often armed.

State v. Box, ___ Kan. App. 2d ___, 17 P.3d 386 (2000). Warrantless search of a locked glove box incident to the arrest of the driver for a warrant and suspended driver's license was reasonable under the unique facts of this case. A paralyzed individual sitting in the front passenger seat, occupants with narcotics convictions (making it likely weapons were present), and inclement weather all contributed to the exigent circumstances present. Gun found in glove box was admissible. Court relies upon Chimel & six factor test in State v. Tygart, 215 Kan. 409, but declines to adopt bright line of Belton & State v. Press, 9 Kan.App.2d 589. Court curiously fails to mention Anderson, 259 Kan. 16.

State v. Davis, 28 Kan.App.2d 75, 11 P.3d 1177 (2000). Defendant was sitting in back seat of a taxi with a person wanted on a forgery warrant. Officers removed wanted person and defendant, and patted them down. Finding nothing on defendant, officer grabbed his jacket out of the cab, intending to send defendant on his way. Officer felt hard object in jacket about the size of an ink pen, and seized 3 crack pipes containing residue. Court held pat-down of defendant and search of his jacket was not supported by reasonable suspicion, and could not be done incident to the arrest of the other person, even though he was in close proximity to the wanted person. Officer did not testify about any concern for his safety, and items in the jacket were not immediately apparent to him to be contraband.

United States v. Prieto-Zubia, 103 F.Supp.2d 1292 (D.Kan. 2000). In a hotel-interdiction case, the following factors amounted to probable cause to stop and search car: (1) Motel check-in from Midland/Odessa, a source city; (2) early check-in consistent with late-night travel; (3) payment for room in cash; (4) short trip to a nearby restaurant in a Gold Stratus; (5) Room registrant’s/car owner’s hit in NADDIS; (6) Stratus registration to a dealership in El Paso, which also had a NADDIS hit; (7) rendezvous at a restaurant connected with prior drug investigation; (8) rapid exchange of car keys with no conversation or greeting; (9) original drivers getting into a Green Achieva connected with a prior drug investigation; and (10) tool marks on passenger-side air bag cover.

United States v. Park-Swallow, 105 F.Supp.2d 1211 (D.Kan. 2000). KCK police officer was patrolling an area known for narcotics activity. He saw an illegally-parked car in front of a bar and pulled in behind it. While walking up to the car, the owner approached with a bag of groceries and asked if anything was wrong. The officer said the car was illegally parked and started walking around it, noticing an open beer can inside. The officer asked for license and registration, and ran a computer check, which showed a recent narcotics arrest. Officer then asked for consent to search. Defendant said, "sure, go ahead." Search yielded beer, a gun and drugs. Court held consent was the product of an illegal detention and suppressed the evidence, holding that a reasonable person was not free to leave until a ticket was issued. Although officer was not overly coercive, he never told the defendant she could refuse to produce her license, leave, or decline consent to search. Questioning the defendant about criminal conduct unrelated to the illegal parking or open container charge violated her rights under the Fourth Amendment.

City of Indianapolis v. Edmond, 531 U. S. 32, ___ S.Ct. ___, ___ L.Ed. 2d ___ (No. 99-1030, filed 11/28/00). Suspicionless drug interdiction checklanes are different from border, sobriety and driver's license checklanes and violate the Fourth Amendment. Primary purpose of a legal checklane must be in the interest of highway safety rather than a general interest in crime control. Indiana police stopped 1161 vehicles and arrested 55 motorists for drug-related crimes and 49 for other offenses. Each stop, absent reasonable suspicion or probable cause, lasted less than five minutes. Affirms the Seventh Circuit. Edmond v. Goldsmith, 183 F.3d 659 (7th Cir. 1999). Prior to this opinion, 11th Cir. allowed, while 6th, 10th & D.C. Circuit prohibited. Palmer v. Goldsmith, 183 F.3d 659 (7th Cir. 1999).

State v. Thomas, 28 Kan.App.2d 70, 12 P.3d 420, rev. denied 270 Kan. 70 (2000). The odor of marijuana on a person in custody, coupled with the detention facility's recognized security interest in preventing the introduction of such contraband within its walls, is sufficient to establish probable cause to strip search the person in question. See also State v. MacDonald, 253 Kan. 320, 324-25, 856 P.2d 116 (1993), the Kansas Supreme Court held that the mere odor of marijuana, standing alone, was sufficient to establish probable cause to conduct a warrantless search of an automobile.

State v. Davis, ___ Kan. App. 2d ___, ___ P.3d ___ (No. 82850, filed __/__/2000)(unpublished). Landlords cannot give consent to search a tenant's residence. Search & seizure of drugs was unconstitutional.

State v. Morris, 27 Kan. App. 2d 155, 999 P.2d 283 (2000). Police violated reasonable expectation of privacy by peering through 4"x5" opening in Venetian blind. Officers were on front porch and had to lean over off the porch to see through broken slats in the closed blinds.

State v. Savage, ___ Kan. App. 2d ___, 10 P.3d 765 (2000). Phone tip staying the caller lived in a house at a certain address and had access to the entire house, that one of his roommates was growing marijuana in the house on the kitchen window sill, and that he would admit an officer if one would come out, when corroborated by another officer, certainly supplies probable cause to issue a warrant for the residence. At the suppression hearing the state presented only the dispatching and searching officer's testimony. State alleged it wasn't offered to prove truth of whether caller voluntarily consented to search, just officer's perception of whether he gained voluntary consent. District court erred in not considering officer's testimony going to apparent authority. Although it may be better to present direct testimony from the party suppling information to the officer, it is usually not a precondition for its consideration. The district court's granting of motion to suppress was reversed.

People v. Comacho, ___ Cal. ___ (No. S075720, filed 7/27/00). California Supreme Court holds that officer's warrantless entry into residential side yard at 11:00 p.m. and peek through an uncurtained window not visible from the sidewalk violated the Fourth Amendment. Officers were responding to an excessive noise complaint, but heard only nonexcessive noise from defendant's stereo. Saw defendant packaging drugs through an 8X4 foot window. Officers called for backup and then entered through window. Evidence should have been suppressed.

United States v. Meindl, 83 F.Supp.2d 1207 (D. Kan. 1999). Shawnee County Sheriff's Deputies entry through a window to arrest subject on a misdemeanor bench warrant for driving while suspended did not violate the Fourth Amendment. According to the prosecutor, Defendant is having a psychiatric evaluation and will probably plead to the charges, reserving the right to appeal.

Hell's Angels Motorcycle Corp. v. Monterey County, Cal., ___ F.Supp. ___ (N.D. Cal. No. C-99-1512-VRW, filed 3/13/00). Persons with a privacy interest in documents which have been seized by law enforcement officers must be given notice and an opportunity to challenge a subpoena for the property obtained by a third party. Here, law enforcement seized Hell's Angels documents in a robbery & murder investigation. The FBI subpoenaed them for a drug investigation. The court held the law enforcement officers should have given the Hell's Angels notice and an opportunity to be heard before they complied with the subpoena. Otherwise, law enforcement violates the Hell's Angels Fourth Amendment rights..

Bond v. United States, 529 U.S. 334, 120 S.Ct. 1462, 146 L.Ed.2d 365 (2000). Manipulation of soft-sided luggage in an overhead rack during a bus station stop amounts to a Fourth Amendment search. The brick of methamphetamine discovered by customs agents must be suppressed because agents violated defendant's reasonable expectation of privacy.

Price v. Kramer, 200 F.3d 1237 (9^th Cir. 2000). Jury did not err in awarding a $245,000 verdict against three Torrance, CA police officers for racially biased actions and excessive force. Three 17 year-old boys were stopped in their car for a traffic violation. They were removed at gun point; when frisked, one officer grabbed each boy's testicles and then forcefully squeezed them. The three-judge panel upheld the verdict, noting that police mistreatment of young people and minorities is not an isolated incident in the L.A. area or elsewhere.

United States v. Miles, 82 F.Supp.2d 1201 (D. Kan. 2000). Officer's entry into defendant's apartment to serve arrest warrant was lawful.

United States v. Kennedy, 81 F.Supp.2d 1103 (D. Kan. 2000). Defendant did not have a Fourth Amendment privacy interest in his internet subscriber information.

Florida v. J. L., 529 U.S. 266, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000)(affirming 727 So. 2d 204 (1999)). Anonymous tip that a black male wearing a plaid shirt standing in front of a certain pawnshop is carrying a concealed firearm, is not sufficiently reliable, absent some corroboration by police officers, to justify investigatory detention and frisk. Weapon seized should have been suppressed.

Nelson v. McMullen, 207 F.3d 1202 (10^th Cir. 2000). Traffic stop for speeding which resulting in a roadside exposure of breasts to disprove the existence of a tattoo was not unreasonable under the circumstances, so officer is entitled to qualified immunity. However, officer should have better controlled the exposure.

State v. Shively, 268 Kan. 589, 999 P.2d 952 (2000). Officer must hold an objectively reasonable belief that an emergency situation exists in order to justify a no-knock entry. Serving practically all warrants in a no-knock fashion violates the Richards v. Wisconsin rule (520 U.S. 385, 117 S.Ct. 1416, 137 L.Ed.2d 615 (1997)). Here CI had advised police that no weapons were present and the target of the warrant was expected to be found asleep. See also Wilson v. Arkansas, 514 U.S. 927, 115 S.Ct. 1914, 131 L.Ed.2d 976 (1995); State v. Wakefield, 267 Kan. 116, 977 P.2d 941 (1999); United States v. Moore, 91 F.3d 96 (10^th Cir. 1996); Murray v. United States, 487 U.S. 533, 108 S.Ct. 2529, 1010 L.Ed.2d 472 (1988)(illegal warrantless search does not require suppression of evidence observed if evidence relied upon in obtaining later warrant is wholly independent of the prior search).

United States v. Broomfield, 201 F.2d 1270 (10^th Cir 2000). Based on the totality of the circumstances, consent to search bag in the Topeka bus station was voluntary. DEA agent Thrower boarded bus alone, not showing a weapons, and showed Broomfield his badge and asked if he could speak with him. Broomfield agreed. After answering questions about a five-day trip with one small duffel bag, Thrower asked consent to search, yielding 139.9 grams of cocaine base. Broomfield said "sure" but became visibly nervous. Although Thrower did not tell him he was free to leave or that he could refuse consent, no reasonable person would have felt they were not free to leave. Refuses to follow 11^th Circuit decisions requiring officer to tell persons they have a right to refuse.

Commonwealth of Massachusetts v. Rodriguez, ___ A.2d ___ (Mass. SJC-07984, filed 1/18/00). Drug interdiction roadblocks violate the Massachusetts state constitution because they are for purposes of discovering evidence of a crime, unlike DUI roadblocks which promote public safety by removing deadly drivers from the roadways.

Traffic Stops

United States v. Hishaw, ___ F.3d ___ (10^th Cir. No. 99-6258, filed 12/20/2000). Stop and pat-down of defendant was justified by officer's reasonable belief that defendant was engaging in drug sales while having "lots of contact" with people in the parking lot, in view of his recent narcotics arrest and presence at an apartment where police were about to execute a search warrant. Pat-down was reasonable based on officer's experience that drug dealers are often armed.

State v. Steen, 28 Kan.App.2d 214, 13 P.3d 922 (2000). Officer saw a suspicious-looking C3 in a car and ran the tag through some database showing a C3 was "associated with" the car and had an arrest warrant. The officers stopped the car based on that information, and found marijuana after arresting the driver, who was the person with the "association.". The court held reasonable suspicion for a car stop can be based on past criminal activity, but there was insufficient information in the record about the database to determine whether the officer was relying on reliable information. Case remanded for proof the database specifically links the defendant with the vehicle as a driver or passenger or somehow provides specific information to link the driver with criminal activity.

State v. Maybin, 27 Kan. App. 2d 189, 2 P.3d 179 (2000). Whether an officer has reasonable suspicion to stop a car depends on the facts of each case. Location, time of day, previous reports of crime in the area and furtive actions of a suspect may well justify a stop. However, time of day and reports of crime in the area will not in and of themselves justify a Terry stop.

Florida v. Wilson, No. 734 So. 2d 1007 (1999), cert. denied ___ U.S. ___ (No. 99-1468, 5/15/00). Police officer conducting a car stop cannot order a passenger to return and remain in the vehicle in the absence of (1) a reasonable suspicion of criminal activity, or (2) a reasonable belief that the passenger posed a threat to the safety of the officer, the passenger or others.

United States v. Wilson, ___ F3d. ___, 2000 WL 253604 4^th Cir.) Turning around in a gas station parking lot and going back the other way, resulting in avoidance of a drivers' license checkpoint over 500 feet away was not a sufficient reason to stop the vehicle. All driving maneuvers were legal, and fact that defendant avoided the checkpoint established no more than a hunch defendant was trying to avoid the checkpoint. No reasonable suspicion to stop the vehicle.

Use of Force

State v. Anderson, ___ Kan. ___, ___ P.3d ___ (No. 83,433, filed 11/3/2000). District court erred in dismissing involuntary manslaughter charges against person who was fleeing from police on a motorcycle. Although trooper failed to exercise due care for the safety of others and was guilty of vehicular homicide, his negligence or criminal responsibility is not a defense to charges against the defendant. Officers have a duty to apprehend and arrest law violators.

Campbell v. City of Leavenworth, ___ Kan. App. 2d ___, 13 P.3d 917 (filed 11/3/2000). Officers did not use excessive force when they shot and killed a mentally disturbed person on a breach of trust call. Deceased told officers they would have to kill him or he would kill them. Officers made two attempts to subdue deceased with a dog, but on the second attempt deceased rushed officers with a large (8-inch) barbeque fork raised over his head. Deceased got within 8 feet of officer before officer fired twice, killing deceased. The fact that plaintiff’s expert disagreed with the police officer’s actions did not make them unreasonable.

Hicks v. Woodruff, 216 F.3d 1087 (10^th Cir. 2000, unpublished). Off-duty officer could have feared for his safety when he tried to stop a suspected check forger who struck the officer and took the officer's gun. Officer had probable cause to believe Hicks was a fleeing felon who posed a significant threat of death or serious bodily injury to the officer or others.

Headwaters Forest Defense v. County of Humboldt, 276 F.3d 1125, 1131 (9th Cir. 2002). Officers violated the Fourth Amendment by using Capstun against non-violent, peaceful protesters who refused to voluntary leave and placed themselves in self-restraint devices after being advised they were trespassing.

1999 Police Case Update List

ADA

Spades v. City of Walnut Ridge, ___F.3d ___ (No. 98-4119, 8^th Cir. 1999). Officer who used city-issued handgun to attempt suicide was terminated based on fear of exposure to legal liability. Officer sued agency claiming ADA violation. 8^th Circuit affirmed officer's termination holding that officer's depression was controlled by medication and counseling, therefore not a disability pursuant to Sutton and Murphy. "Increased potential liability associated with an employee's past activities is a legitimate concern of the City, particularly where there is known violent behavior."

Alsbrook v. City of Maumelle, ___ F.3d ___ (WL 521709 (8^th Cir. 1999). Officer candidate rejected based on failure to meet POST vision standards. Candidate sued claiming violation of title II of the ADA. 8^th Circuit held that Congress did not abrogate State's immunity and that 11^th Amendment barred suit against the State.

Equal Employment Opportunity Commission v. Wal-Mart Stores, Inc., ___ F.3d ___ (10^th Cir. No. 98-2015, 8/23/99). Employer must do more than produce a written nondiscrimination policy to avoid vicarious liability for $75,000 in punitive damages for the misdeeds of its managers. Must make good faith effort to educate employees about the law and the policy.

Albertson's Inc. v. Kirkinburg, ___ U.S. ___, 119 S.Ct. 2162, 144 L.Ed.2d 518 (1999). Employer entitled to enforce visual acuity standard against employee truck driver who had obtained waiver of standard under experimental federal program.

Sutton v. United Airlines, ___ U.S. ___, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999). Determination of whether disability substantially limits major life activity held properly made with reference to mitigating measures. Severely myopic individuals (20/200 or worse right eye, 20/400 or worse left eye; correctable to 20/20 or better with glasses/lenses) denied employment based on a 20/100 uncorrected standard were not disabled where corrective lenses allowed individuals to function identically to people without similar impairment.

Murphy v. United Parcel Service, Inc., ___ U.S. ___, 119 S.Ct. 2133, 144 L.Ed.2d 518 (1999). Determination of whether disability substantially limits major life activity held properly made with reference to mitigating measures. High blood pressure controlled by medication not a disability.

Smith v. Midland Brake, Inc., ___ F.3d ___ (10^th Cir. 1999)(en banc). A person who is unable to perform the essential functions of his current job with or without reasonable accommodation but could perform the essential functions of other available jobs in the company is a "qualified individual with a disability." If a reasonable accommodation was not available to help the employee perform his current job, then the employer must consider reassignment.

Civil & Criminal Liability

Spencer v. Knapheide Truck Equipment Co., 183 F3d 902 (8^th Cir. 1999). Plaintiff, a pre-trial detainee suffered injuries rendering him a quadriplegic after he was placed with his hands cuffed behind his back in a police wagon and was thrown forward into the bulkhead of the passenger compartment. There were no seatbelts or other safety restraint devices installed in the compartment. The Boards decision to use patrol wagons without seatbelts was based on its concern that the individuals transported in the wagon, even those who were handcuffed, could use the seatbelt as a weapon to harm an officer, other passengers being transported in the wagon, or even themselves. Plaintiff claimed that the Board maintained an official policy of purchasing and using patrol wagons that were inherently unsafe. The Appellate Court affirmed the District Court’s decision that the Board was not deliberately indifferent to plaintiff’s constitutional rights.

State v. Cheek, ___ Kan. App. 2d ___ (1999). Former Kansas City police officer's voluntary manslaughter conviction upheld. Off duty officer fired four shots at Milton Fostor in a Bonner Springs Sports Bar.

Butera v. District of Columbia, ___ F.Supp. ___ (D.C. 10/20/99)(profiled in 9 K.L. 499 p. 3). Jury awarded mother of Eric Butera $98 million after police failed to protect him. Butera overheard info regarding a murder while buying drugs. Police asked him to make another buy, and repeatedly say they would protect him. Sent him to make the buy without surveillance equipment. Butera was attacked, robbed & killed before entering the house. Police did not find out until 40 minutes later when someone called 911.

Brown v. Oneonta, ___ F.3d ___ (2d Cir. 98-9375 10/26/99). LEOs did not deny blacks equal protection by conducting a "sweep" of a small, predominantly white town after and elderly woman said she a "young black man" broke into her home and cut his own hand with a knife while struggling with her. Officers did Terry stops of more than 200 young black males and checked their hands. Court found no intentional discrimination. Plaintiffs were not questioned "solely on the basis of their race . . . but on the altogether legitimate basis of a [somewhat vague] physical description given by the victim of a crime."

California Attorneys for Criminal Justice v. Butts, 195 F.3d 1039, (9^th Cir. 1999), pet. for cert. filed ___ U.S. ___ (Nos. 97-56499 and 97-56510). Argued 1^st week of October 1998. Case poses two basic questions: (1) Does the Fifth Amendment prohibit a police officer from deliberately continuing an interrogation after a suspect asks for a lawyer? and (2) If the interrogation violates Miranda, can the officer be held liable in a 42 U.S.C. § 1983 action? Ninth Circuit said yes to both questions.

Taylor v. Monfils, 165 F.3d 511 (7^th Cir. 1998), cert. denied, ___ U.S. ___ (No. 98-1744). Deputy Chief of Detectives not entitled to qualified immunity on state-created danger claim. Chief of Detectives assured informer and prosecutor that tape of informer's phone call would not be released, but did nothing to prevent release which led to informer's murder.

Lovelace v. Anderson, WL 351150 (Md.App. 1999). Off-duty police officer working security at a hotel was entitled to qualified immunity when he intervened in an armed robbery and became involved in a gun battle with the robbers. One of his shots struck a hotel guest. When he intervened, he reverted to police officer status and there was no evidence he acted with malice.

Williams v. Bramer, et al., 180 F.3d 699 (5^th Cir. 1999). An officer's use of a racial epithet ("boy" and "nigger", both of which the officers denied), does not constitute violation of a subject's 14th Amendment rights to equal protection under the law unless it is accompanied by physical harassment or other constitutionally objectionable conduct. In short: offensive language, taken alone, is not actionable.

Quinn v. Nassau County Police Dept., ___ F. Supp. ___ (1999 WL450863 EDNY 6/28/99). District court affirms $380,000 jury verdict for gay police officer who established 42 U.S.C. § 1983 violation based on a denial of equal protection.

Martinez v. City of Albuquerque, 184 F.3d 1123 (10^th Cir. 1999). Plaintiff, Martinez, was caught patronizing a prostitute while in his car. Martinez attempted to flee when officers approached. A brief chase ensued. A few seconds later, Martinez stopped his vehicle, locked the doors, and rolled down the window. With his hands gripping the steering wheel, Martinez claimed he had done nothing wrong. When Martinez refused to exit his vehicle, one of the arresting officers reached in the window to unlock the door. Martinez rolled up the window on the officer's arm. Another officer struck Martinez in the face, unlocked the vehicle and arrested Martinez. The entire incident lasted only two to three minutes. The District court dismissed Martinez's excessive force claim without prejudice pending outcome of plaintiff's state appeal on criminal charges (resisting arrest). The Tenth circuit reversed holding that a judgement in plaintiff's favor in the civil action would not necessarily imply the invalidity of conviction for resisting arrest.

Valdez v. McPheters, 172 F.3d 1220 (10^th Cir. 1999). Officers had felony arrest warrant for subject. Mother allegedly refused entry without search warrant, but there was conflicting evidence. Officer's searched twice, but did not find subject inside. Subject had been seen in area several times, had given his mother's address on prior arrests, been seen driving or riding in a vehicle that had been seen parked at mom's, and other officers believe defendant stayed there when in town. Mother later sued officers for violating her Fourth Amendment Rights. 10^th Circuit held officers were entitled to enter based on arrest warrant on a reasonable basis for believing subject lived there and was located within. Rejects probable cause standard and states that direct surveillance or actual knowledge is not required. Held officers were entitled to qualified immunity.

West Covina, Calif. v. Perkins, 525 U.S. ___, 119 S.Ct. 678, 142 L.Ed.2d 636 (1999). Fourteenth amendment does not require law enforcement officers who seize property for criminal investigation to provide property owner individualized notice of state law remedies for return of property when information about those remedies is available from published sources, such as state statutes.

Dl Hearings

Huelsman v. Kansas Department of Revenue, 267 Kan. 456, 980 P.2d 1022 (1999). KDR suspended based on refusal. Eight days later, Salina Municipal Court tossed the case finding no probable cause for arrest. Revenue's finding that reasonable grounds existed did not foreclose Salina Municipal Court finding there was no probable cause for the arrest. The Salina prosecutor and KDR were not in privity and the differences in the quality and extensiveness of the proceedings results in an exception to collateral estoppel. Can have reasonable grounds without having probable cause.

Thomas v. Kansas Department of Revenue, 26 Kan.App.2d 132?, 980 P.2d 594? (1999). A conclusory statement by a certifying law enforcement officer on a DC-27 form of reasonable grounds to believe a driver was operating under the influence is sufficient to meet the requirements of K.S.A. 1998 Supp. 8-1002(a)(1).

Ruble v. Kansas Department of Revenue, 26 Kan.App.2d 1, 973 P.2d 213 (1999). Defendant failed a DUI breath test and had his license suspended. District court set aside Ruble's 330-day license restriction because the officer failed to notify Ruble of the restriction period. Kansas Court of Appeals held the officer's failure to notify a suspected drunk driver of the restriction period was irrelevant. Ruble also claimed the evidence of test failure was insufficient because he blew a 0.087, the standard checked out within range at 0.072, and the 0.008 "margin of error" required a showing that his BAC was 0.008 higher than 0.080. Court rejected this argument holding that if the instrument is certified and appears to be working properly, the operator is certified, and the protocol is followed, there is no requirement to overcome any "margin of error."

Driving While Suspended

State v. Patton, 26 Kan.App.2d 591, 992 P.2d 819 (1999). K.S.A. 8-262(a)(1)(C) only prohibits driving while suspended on a "highway." Highway is defined as the "entire width between the boundary lines of every way publicly maintained when any part thereof is open to the use of the public for purposes of vehicular travel." This definition does not include a Wal Mart parking lot which is privately owned but open to use by the public.

State v. Thrash, ___ Kan. ___ (No. 81464 filed 7/9/99). In misdemeanor DWS case, notice mailed to last known address is sufficient. No requirement to send second notice if Dept. of Revenue subsequently receives a change of address.

State v. Bandy, 25 Kan.App.2d 696, 971 P.2d 749 (1998), rev. denied 266 Kan. 1110 (1999). Sequential relationship requirement of State v. Wilson, 6 Kan.App.2d 302 and State v. Osaba, 234 Kan. 443, does not apply to determination of criminal history under the KSGA. All convictions prior to sentencing in the immediate case are considered regardless of whether the offense occurred before or after the offense in the immediate case. In this case, offense was 2/5/95 and conviction was 8/1/96. All convictions subsequent to offense date are considered. (Other convictions were on 3/19/96 for 2/22/95 offense; conviction on 4/8/96 for 3/3/95 offense; conviction on 4/9/96 for 2/26/96 offense).

DUI

State v. Martinez, 268 Kan. 21, 988 P.2d 735 (1999). The district court erred in determining that imposing a strict liability felony penalty for a third conviction for DUI pursuant to K.S.A. 1998 Supp. 8-1567 is unconstitutional.

State v. Bickerstaff, 26 Kan.App.2d 423, 988 P.2d 285 (1999). Driver stopped for speeding. Officer smelled odor of alcoholic beverage. Driver denied drinking. FST and PBT indicated presence of alcohol, but not impairment. Consent to search refused. Officer searched vehicle and found open container, marijuana, methamphetamine and paraphernalia. Trial court suppressed evidence saying odor of alcoholic beverage does not provide PC to search. Court of Appeals reversed, holding that it does.

State v. Slater, 267 Kan. 694, 986 P.2d 1038 (1999). DUI stop based on anonymous tip of suspected 10-46. District court suppressed all evidence. Supreme court reversed, holding RS determined by both content and reliability in addition to threat to public safety as balanced against intrusion into citizen's freedom and privacy. Although anonymous tip is lowest in reliability, quality of information given, subsequently verified by officer prior to stop, justified stop under totality of circumstances.

State v. Davis, 266 Kan. 638, 972 P.2d 1099 (1999). Prosecutor's failure to provide DUI discovery (certification of standard solution and weekly test results of the Intoxilyzer 5000 for two months preceding, month of, and month following breath test) requested by defense counsel and ordered by court resulted in dismissal of complaint with prejudice. Supreme court held documents were relevant and subject to discovery and should have been produced and mailed to defense counsel. Contempt finding was not an abuse of discretion, but dismissal of charges was.

State v. Blair, 26 Kan.App.2d 7, 974 P.2d 121 (1999). Kansas Court of Appeals held that observed erratic driving is not a requirement for conviction of driving under the influence of alcohol. The stop was for reasons other than erratic driving, and the officer testified defendant had an odor of alcohol around her and had some problems with field sobriety tests. This evidence, when coupled with defendant's statements that she had four beers, was drunk, knew she was drunk and would take a blood test to prove it, was sufficient to convict of DUI.

Domestics

State v. Kimberlin, 26 Kan.App.2d 28, 977 P.2d 276 ( 1999). When officer respond to a domestic violence call, consent by victim to entry of one officer also applies to backup officer. Added intrusion is only minimal when compared against officer safety interest. Officers responded to 911 call. Drunk, angry and belligerent male ordered them to leave. Officers left, then came back when they heard defendant yelling at female. He ordered them to leave again, but they eventually arrested him for disorderly conduct. Female came outside and said male tore up a roommate's bedroom. She gave one officer consent to inspect damage. Other followed, and found defendant near some roaches in an ashtray. Officers asked for general consent which was refused. Based on view of roaches, officers got a search warrant and searched house, yielding drugs.

State v. Strange, (Kan.App. No.77,949, unpublished opinion filed 3/5/99). Conviction of aggravated burglary reversed where state failed to prove entry without authority. Both defendant and his girlfriend were on lease. Neither had been evicted, although defendant voluntarily moved out 3 weeks prior to the alleged burglary. See also State v. Harper, 246 Kan. 14, 785 P.2d 1341 (1990)(state failed to prove entry without authority when employee entered business at 2:00 a.m. to steal files. Employer had asked for keys back, but knew defendant retained keys intending to use them to retrieve tools. Employer did not insist on return of keys or otherwise place specific limitations on defendant's access to building).

Employment

United States v. City of Miami, F.O.P. Lodge 20, ___ F.3d ___ (No. 98-4626 11^th Cir. 11/17/99). $9 million award for reverse discrimination was excessive because designed to make 35 officers whole when only two positions were at issue, and each Lt. candidate only stood a one in 23 (4%) chance of promotion and Sgt. candidates only stood a one in twelve (8%) chance of promotion. Value of lost promotions was only about $500,000.

Higgins v. New Balance Athletic Shoe, Inc., ___ F.3d ___ (1^st Cir. 99-1043 10/22/99). Factory worker had no valid Title VII retaliation claim against former employer when he was allegedly discharged for complaining about harassment he suffered due to being a homosexual. Sexual orientation is not a protected class.

Firearms

F.O.P. v. U.S.A., 173 F.3d 898 (1999), cert. denied, 120 S.Ct. 324. The Lautenberg Amendment to 18 U.S.C. § 922(g) prohibiting possession of a firearm by those convicted or subject to a restraining order for domestic battery is constitutional.

First Amendment

Los Angeles Police Department v. United Reporting Publishing Company, 528 U.S. ___, 120 S.Ct. 483, 145 L.Ed.2d 451 (1999). Court revives a California law limiting access to crime reports, including victim name and address and arrestees, to those using them for "a scholarly, journalistic or governmental purpose." Government has an interest in limiting access to its records for certain purposes, and can decide not to give out arrestee information without violating the First Amendment..

Latino Officers Ass'n, New York, Inc. v. New York City, ___ F.3d ___ (2d Cir. No. 99-7657, filed 11/1799). City violated officer's free speech rights by barring unrecognized Latino Officer's Ass'n members from wearing uniforms during ethnic pride parade, when Hispanic Officers Ass'n could. Court said that celebrating ethnic participation in the police force is a matter of public concern.

Olmer v. Lincoln, Neb., ___ F.3d ___ (No. 98-4112NE, 10/14/99, 8^th Cir. 1999). Ordinance prohibiting focused picketing in vicinity of churches during religious services and 30 minutes preceding and following them violates First Amendment Free Speech Clause.

City of Chicago v. Morales, ___ U.S. ___, 119 S.Ct. 1849, 144 L.Ed.2d 67 (1999). A loitering ordinance authorizing the arrest of persons who have disobeyed a police order to move on, given when a police officer has reasonable cause to believe that a group of loiterers contain a member of a criminal street gang, is impermissibly vague in violation of due process guarantees. (Note: Stay tuned for further developments. City council passed a new ordinance in February 2000 designed to fix the vagueness flaws cited by the Supreme Court - ABA Journal, June 2000 at 28.)

Latino Officers Ass'n v. Safir, ___ F.3d ___ (2d Cir. No. 97-7957, filed 3/5/99). Police department rule requiring: (1) officers to prepare written notification indicating name and location of governmental agency or private organization to which the officer is invited or subpoenaed to testify or make a statement, to be submitted within 5 business days before the appearance; and (2) to deliver a summary of the testimony or statement given, including questions and answers, to the Commissioner on the next business day after the appearance, did not violate the officer's First Amendment rights.

Edwards v. City of Santa Barbara, 150 F.3d 1213 (1998), cert. denied ___ U.S. ___ (No. 98-1074, 3/8/99). Ordinance limiting demonstration activities near medical facilities and places of worship was constitutional in part, but was not narrowly tailored as to certain provisions.

FLSA

Alden v. Maine, 144 L.Ed.2d 636 (1999). Congress does not have power under Article I of the United States Constitution to subject nonconsenting states to private suits for damages in state's own courts.

Theisen v. City of Maple Grove, ___ F.Supp. ___ (No. 97-2565 D. Minn. 1/15/99). City required to compensate police canine handlers for time spent at home caring for police dogs. In figuring regular rate for back pay, nondiscretionary bonuses must be included, but discretionary bonuses can be excluded. In this case, longevity pay required by CBA should be included. Also, canine specialist premium pay must be included unless excluded by 29 U.S.C. § 207(e)(5)-(7).

Forfeiture Proceedings

City of Hoisington v. $2,004 in U.S. Currency, ___ Kan.App.2d ___, ___ P.3d ___ (No. 83,662, filed 8/1/2000). Passenger in a car consented to search yielding drugs and paraphernalia and was arrested. She removed a wad of cash from her pocket and started to give it to the driver for her bail, but it was promptly seized. Passenger had no good explanation for the source of the cash. Court held money was found in close proximity to drugs, which creates a rebuttable presumption for forfeiture. Passenger failed to meet her burden to overcome the presumption.

State v. Residential Unit & Real Estate at 930 Winwood #2, Junction City, Kansas, ___ Kan.App.2d ___ (No. 79,348, filed 7/2/99). Language in K.S.A. 60-4113(g) requiring a forfeiture hearing to be held within 60 days after service of the petition is directory rather than mandatory, but failure to conform to the statute can be fatal if a claimant's right to due process is violated by an excessive time period before a hearing.

U.S. v. 3814 Thurman St., Portland Ore., ___ F.3d ___ (9^th Cir. No. 97-35054, 1/5/99). Forfeiture of over $200,000 in mortgage loan proceeds fraudulently obtained was grossly excessive considering no crime was charged, if it had been fine for offense was only between $500 and $5000, and victims did not suffer any actual loss. Forfeiture was more than 40 times the maximum possible fine. One judge dissented.

Gangs

High Speed Pursuits

Carleton v. Tulsa, Okla., ___ F.3d ___ (10^th Cir. 1999), cert. denied, ___ U.S.___ (No. 98-1654). Absent allegation that officer in high-speed chase intended physical harm to persons in car into which chased vehicle crashed, civil rights action fails to state a 14^th Amendment Due Process claim. Absent constitutional violation by officers, claims against City must fail.

Immigration

United States v. Vasquez-Alvarez, 176 F.3d 1294 (10th Cir. 1999) (rejected by, U.S. v. Arizona, 641 F.3d 339 (9th Cir. 2011)), held that the general authority of state and local police to investigate and make arrests for violations of federal immigration laws is not preempted. The case arose when the alien defendant was arrested by a local police officer on the sole basis that he was an undocumented alien. Criminally charged with illegally reentry after deportation 8 U.S.C.A. § 1326 thereafter, the alien defendant sought to suppress his postarrest statements, fingerprints, and identity on the grounds that the underlying arrest by local police was preempted. In sustaining the defendant's conviction, the Tenth Circuit began by asserting that state and local police have the general authority to investigate and make arrests for violations of federal immigration laws. The court then held that this authority is not preempted by a federal statute authorizing state and local law police to arrest and detain an undocumented alien under certain circumstances if the aliens had been deported or left United States because of a felony conviction 8 U.S.C.A. § 1252c. The introductory language of Section 1252c, "[n]otwithstanding any other provision of law, to the extent permitted by relevant State and local law. . .," the court said, cannot reasonably be read as an express preemption of state and local law authorizing police to investigate and make arrests for violations of federal immigration law. The second clause of the introductory language expressly negates any intent to preempt limitations on state or local authority to investigate and make arrests for violations of federal immigration law. The court also noted the absence of express preemption in the legislative history behind Section 1252c. The purpose behind Section 1252c, according to the court, was to displace a perceived federal limitation on the ability of state and local officers to arrest aliens in violation of federal immigration laws. Neither did Section 1252c preempt by implication state law or local laws authorizing law enforcement to make arrests for violations of federal immigration laws, the court held.

Note: In United States v. Arizona, 641 F.3d 339 (9th Cir. 2011), cert. granted, 132 S. Ct. 845, 181 L. Ed. 2d 547 (2011) and aff'd in part, rev'd in part and remanded on other grounds, 2012 WL 2368661 (U.S. 2012), noted that the Tenth Circuit's interpretation of 8 U.S.C.A. § 1252c is not persuasive, as § 1252c was intended to grant authority to state officers to aid in federal immigration enforcement because Congress thought state officers lacked that authority. The Ninth Circuit in Arizona held that the states do not have the inherent authority to enforce the civil provisions of federal immigration law.

Interrogation

People v. Gonzales, ___ Colo. ___ (99SA197, 11/1/99). No interrogation requiring Miranda occurred when murder suspect being transported after a court hearing, said to deputy, "Can I be up front with you?" and deputy responded, "Sure."

California Attorneys for Criminal Justice v. Butts, ___ F.3d ___ (9^th Cir. Nos. 97-56499 and 97-56510). The Fifth Amendment prohibits a police officer from deliberately continuing an interrogation after a suspect asks for a lawyer, and officers are not entitled to qualified immunity in a suit pursuant to 42 U.S.C. § 1983 for "questioning outside Miranda.

State v. Williams, 268 Kan. 1, 988 P.2d 722 (1999). A waiver of Miranda rights need not be in writing. Following State v. Alexander, 12 Kan. App. 2d 1, 6, 732 P.2d 814, rev. denied 241 Kan. 839 (1987).

Mitchell v. United States, ___ U.S. ___, 67 U.S.L.W. 4230 (1999). Federal criminal defendant does not waive their Fifth Amendment privilege by pleading guilty. At the plea hearing, after asking for a factual basis, the judge asked defendant if she committed the acts alleged by the prosecution and she said "some of them." At sentencing, the prosecutor called co-conspirators to testify about the quantities of drugs sold. Based on this unrebutted testimony and defendant's refusal to testify at sentencing, judge imposed a 10-year mandatory minimum sentence. U.S. Supreme Court held it was improper to draw adverse inferences from the defendant's refusal to testify at the sentencing hearing.

State v. Welsh, 26 Kan.App.2d 362, 988 P.2d 261 (1999). Statements made to private security officers who are not employed by the State and who are not acting under State directives are not subject to the self-incrimination privilege.

United States v. Williams, ___ F.3d ___ (8^th Cir. No. 98-4322, 6/22/99), 68 L.W. No. 3, 1038. Statement indicating location of gun falls within the public safety exception to Miranda where officers serving nighttime no-knock narcotics warrant handcuffed defendant then asked "Is there anything we need to be aware of?"

State v. McCorkendale, 267 Kan. 263, 979 P.2d 1239 (1999). Statements made after Miranda warnings are admissible if they are knowing and voluntary. Factors include: (1) the accused's mental condition; (2) the manner and duration of the interrogation; (3) the ability of the accused on request to communicate with the outside world; (4) the accused's age, intellect and background; and (5) the fairness of the officers conducting the investigation.

State v. Dang, 267 Kan. 198, 978 P.2d 277 (1999). Defendant killed girlfriend and child and dumped them in Osage county ditch. Wrapped in linens from his trailer. Moved to Virginia. Kansas officers went to Virginia to question him. VA officials picked him up on a ruse and brought him to station. No handcuffs were applied and defendant was not told he was under arrest. Interviewed in windowless interrogation room 30-60 minutes before warnings given. Officers were not verbally abusive. Then interrogated for 4-4.5 hours. Defendant twice said "That's it." Requested permission to leave, which was denied. Never asked for an attorney. Court held unwarned statements are presumed coercive, but if state overcomes presumption by showing lack of compulsion and obtains warned, voluntary statements, "fruit of the poisonous tree" principle does not bar admission of post-warning statements.

State v. Esquivel-Hernandez, 266 Kan. 821, 975 P.2d 254 (1999). Although defendant could not read English and was in ICU with self-administered morphine pump, his statements to police were voluntary given short duration of questioning, constant attending by nurses, audio tape of interview, and officer's statements defendant did not seem to be in great deal of pain.

State v. Ronald E. Timley, Sr., 25 Kan.App.2d 779, 975 P.2d 264 (1998). Kansas Court of Appeals upheld the surreptitious videotape recording of statements by an arrested individual in a patrol car. Defendant had no reasonable expectation of privacy in the back seat of a police car, he was not subjected to custodial interrogation requiring Miranda warnings, and there was no reversible error in admitting the evidence over a confrontation clause objection. The court, however, reversed defendant's conviction of felony obstruction under K.S.A. 21-3808, stating there was no evidence the uniformed officers were attempting to serve a "writ, warrant, process or order of a court," and it held that a warrantless felony arrest is not "legal process" as defined by the statute. Curiously, the court never addressed whether defendant, who ran from the officers, obstructed them "in the discharge of any official duty." K.S.A. 21-3808(a).

United States v. Dickerson, 166 F.3d 667 (4^th Cir. 1999) rev. granted No. 99-5525. Police officers not required to warn arrestees that they have the right to remain silent. 18 U.S.C. 3501 makes warnings only one element in determining whether confession is voluntary. Federal law supersedes the "judicially created rule" of Miranda. Stay tuned for further developments. Reversed by the U.S. Supreme Court.

Miscellaneous

Gillespie v. City of Indianapolis, ___ F.3d ___ (1997 WL 463577 (7^th Cir. 1999)). Officer was terminated based on past misdemeanor domestic violence conviction after Congress adopted prohibition on carrying a firearm in 18 U.S.C. § 922(g)(9). Sued city claiming discharge violated various constitutional rights. Court upheld statute and termination.

State v. Pendleton, 26 Kan. App. 2d 565, 990 P.2d 1241 (No. 82369, filed 10/29/99). An innocent belief that a buyer of a cereal malt beverage is 21 years of age or over does not relieve the seller from criminal liability for the sale of a cereal malt beverage to an underage buyer. To prove a violation of K.S.A. 21-3610a, the State need only show that the defendant willfully sold a cereal malt beverage to an underage buyer; it is irrelevant in such a case what the defendant innocently believed the buyer's age to be.

State v. Seabury, 267 Kan. 431, 981 P.2d 1162 (1999). Kansas Supreme Court reiterates the rule from State v. Hudson, 261 Kan. 535, 931 P.2d 679 (1997) that the severity of an obstruction charge depends on the arresting officer's authority, knowledge and intent. If intending to arrest only for a misdemeanor, the obstruction is a misdemeanor. If intending to arrest for a felony, the obstruction is a felony.

Off-duty Employment

Howard County Police Officers Association, Inc., v. Howard County, 1999 WL 253 (Md. App. April 30, 1999). Officers argued that the County Executive did not have the authority to delegate to the Chief of Police the power to promulgate off-duty employment rule requiring chief's approval. Maryland Court of Appeals rejected the argument finding that by Maryland statute, a law enforcement agency may promulgate reasonable regulations regarding secondary employment.

Privacy

Riley v. St. Louis County of Mo., 153 F.3d 627 (1998), cert. denied ___ U.S. ___ (No. 98-1020, 3/1/99). Police department did not violate mother's constitutional rights by photographing son's body at funeral home and showing pictures at a gang awareness assembly.

Search & Seizure

United States v. Carey, 172 F.3d 1268 (10th Cir. 1999). Police obtained a search warrant for Carey’s computer to search for "names, telephone numbers, ledger receipts, addresses and other documentary evidence pertaining to the sale of controlled substances." The officers searched the computer using key word searches and did not find any records. They then began opening files, including JPG image files. They found child pornography in the JPG files. They then abandoned the search for drug records and opened all the JPG files; they found more child pornography. The Tenth Circuit, limiting their decision to the specific facts of this case, held that the officers exceeded the scope of the search warrant which was only for documentary (not photographic) evidence of drug dealing. As such, the evidence should have been suppressed.

United States v. Jackson, 213 F.3d 1269 (10^th Cir. 2000). State and federal officials did not violate the Fourth Amendment or Title I of the Electronic Communication Privacy Act of 1986 (18 U.S.C. §§ 2510-22) by installing silent video cameras on telephone poles which recorded activities outside her home, or by using a "video car" capable of recording audio and video of events occurring outside the residence. Title I does not regulate silent video surveillance, and defendant had no reasonable expectation of privacy in any activity a passerby would easily be able to see. Title I does not regulate audio recordings when one party to the transaction (the wired informant) consents to monitoring & taping of the conversation.

United States v. Holt, 229 F.3d 931 (10^th Cir. 2000), vacated on rehearing en banc 264 F.3d 1215 (10^th Cir. 2001). Officers established a targeted checkpoint because they believed defendant was transporting illegal drugs. Defendant approached the checkpoint and was not wearing his seat belt. He was pulled over and requested to join a trooper in his patrol car. While the trooper was holding Holt’s driver’s license and writing a warning, he asked Holt if "there was anything in [Holt’s] vehicle [the trooper] should know about such as loaded weapons." Holt said there was loaded pistol behind the passenger seat. When the trooper asked about anything else, Holt said "I know what you are referring to, but I don’t use them anymore." Trooper then asked to search the vehicle, and Holt agreed, yielding a loaded gun, methamphetamine and paraphernalia. A panel of the 10^th Circuit initially held that questions unrelated to the purpose of the stop amounted to an illegal detention which was not supported by reasonable suspicion and remanded for hearing on whether consent to search was nevertheless voluntary. Sitting en banc, a 5-4 majority of the full court vacated the panel's opinion and reversed the suppression, remanding for further proceedings. The court reasoned that questions about loaded weapons are justified in the interests of officer safety and, when weighed against Holt's even lower expectation of privacy (Oklahoma law requires permitted weapons carriers to disclose the existence of the weapon upon initial contact with any law enforcement officer), there is minimal intrusion on his Fourth Amendment rights. It would make little sense for Oklahoma society to recognize as reasonable the privacy expectations of those who illegally possess concealed weapons when law-abiding weapons carriers have to disclose the existence of their weapons to law enforcement officers. The case was remanded to answer questions about whether the officers questions unnecessarily lengthened the scope and duration of the stop.

State v. Kimberlin, 267 Kan. 659, 663-64, 984 P.2d 141 (1999). Warrantless seizure of discarded trash, even if within the curtilage, is not unreasonable. Here trash was located 5 to 8 feet from the street on the other side of a ditch, 35 to 40 feet in front of the house. The total distance from the house to the street was estimated to be approximately 50 to 55 feet. The entire area, including the ditch, was mowed by the resident. There is no sidewalk on that side of the street. The trash was sitting in the location customarily used for trash pick-up. There was a city easement extending 17 to 20 feet from the edge of the road back toward the house. The parties stipulated that the trash was sitting within this easement area when officers seized it.

United States v. Hill, ___ F.3d ___ (10^th Cir. No. 99-2122, filed 12/21/99). Plain clothes deputy who boarded bus, asked passengers to identify their carry on luggage, and was careful to stand behind the seat of the person he was talking to, and ask for consent before looking in bags, did not coerce those persons on board to consent to search.

United States v. Nolan, ___ F.3d ___ (10^th Cir. No. 98-3193, filed 12/22/99). Officers were entitled to good faith exception where they entered residence pursuant to warrant authorizing seizure of documents, electronic equipment and assets relating to drug trafficking. In essence, the warrant affidavit said a CI purchased crack from the defendant 10 different times at public locations during a one year period and, although the CI had never been in defendant's house, he believed there may be crack there because defendant was careful not to sell crack from the residence, and an experienced narc officer believed that drug dealers keep records in their homes. Once inside, the officers saw drugs and paraphernalia. They obtained a second warrant and seized the drugs. Court dodges issue of whether affidavit establishes a nexus between the place to be searched and the items to be seized, which is necessary to establish probable cause. Instead, find officer's reliance upon issuance of warrant was reasonable.

Calbretta v. Floyd, 189 F.3d 808 (9^th Cir. 1999). Police officer and social worker not entitled to summary judgment for warrantless entry into home to investigate vague child abuse complaint. When social worker was refused entry, children were easily seen inside the house and did not appear to be abused. Officer's claim that alleged child abuse always constitutes an exigency is rejected.

B.C. v. Plumas Unified School Dist., 193 F3d 1260 (9^th Cir. 1999). A police dog sniffing a person is a Fourth Amendment search. Agrees with 5^th Circuit (Horton v. Goose Creek Independent School Dist., 690 F.2d 470 (5^th Cir. 1982); but disagrees with the 7^th Circuit (Doe v. Renfrow, 631 F.2d 91 (7^th Cir. 1980).

Howes v. Hitchcock, ___ F.3d ___ (1999 WL 734583 (D.Mass.)(Opinion by District Judge Patti B. Saris)). In a first impression case, court holds officers who entered a house where an underage drinking party was occurring were qualifiedly immune for violating Fourth Amendment rights. Officers could have reasonably believed warrantless entry was justified by exigent circumstances of destruction of evidence or potential threat to life and property posed by a large underage drinking party.

Wilson v. State Board of Educ., ___ F.3d ___ (9^th Cir. 1999WL971301, Cal.App. 2 Dist.). Dog sniff of a student at a public high school infringed on student's reasonable expectation of privacy and thus constituted a search. Follows 5^th Circuit, declines to follow 7^th Circuit. Holds school and law enforcement officers were entitled to qualified immunity because law was not clearly established at the time of the search.

State v. Long, ___ Kan. App.2d ___, 993 P.2d 1237 (1999). While overnight guest in someone else's apartment can object to illegal police entry, Minnesota v. Olson, 495 U.S. 91, 109 L. Ed. 2d 85, 110 S. Ct. 1684 (1990); State v. Jones, 24 Kan. App. 2d 405, 409, 947 P.2d 1030 (1997), there must be some indicia of lawful presence and a subjective expectation of privacy. Here, there was an invitation to stay the night that was not initially accepted, then a break-in. Defendant did not have any personal items in the apartment Therefore, defendant could not complain of illegal entry by officers who responded to rape call and that were given citizen tip that rapist ran towards a certain apartment, and entered upon seeing a damaged apartment door.

State v. Loins, ___ Kan. App.2d ___, 993 P.2d 1231 (1999). Following factors supported issuing an "all persons" search warrant which resulted in the arrest of the defendant: (1) that concerned neighbors reported drug activity at the trailer; (2) that a lot of juveniles visited the trailer; (3) that a least a dozen cars would arrive and leave over the course of an evening; (4) that a lot of parties occurred in which mainly marijuana was consumed; (5) that Loins was known to be at the parties; (6) that Lenny Landrum, the reported resident, had been arrested for possession of marijuana and drug paraphernalia; (7) that Loins was convicted of possession of marijuana; (8) that an anonymous informant reported seeing marijuana in the trailer on numerous occasions; (9) that a Crime-Stopper tip reported marijuana sales at the trailer by Loins and two other individuals and that all three were living at the trailer; (10) that it is common for persons buying drugs to stay only a short time and leave with the drugs on their persons; and (11) that Loins was involved in trading sex for drugs at the trailer. Generally, an "all-persons" search warrant will be upheld when the affidavit includes information that the place to be searched is a private residence, that drug use and distribution occur at the place, and that there was a regular traffic of persons entering to make purchases.

State v. Miskell, ___ La. ___ (La. No. 98-kk-2146, 10/19/99, 66 Crim. L. Rptr. 91). Louisiana Supreme Court held that having burglar bars over the door was a valid factor justifying a no-knock entry when executing a search warrant.

State v. Weas, 26 Kan. App. 2d 598, 992 P.2d 221 (1999), rev. denied 268 Kan. 895 (2000). Probable cause to believe kidnaping, battery and rape occurred, and evidence of those crimes and/or the assailant(s) were in a house justified warrantless entry based on exigent circumstances. Officers did not find assailants, but saw drugs in plain view. They obtained a warrant, then seized the drugs. Initial entry lawful based upon probable cause and exigent circumstances. Alternative ground is independent source, because warrant could have issued for person crimes.

Flippo v. West Virginia, 528 U.S. ___, 120 S.Ct. 7, 145 L.Ed.2d 16 (1999) (per curium). Husband called 911 and told police he and his wife were attacked at their vacation cabin. Police arrived, husband was transported to hospital, wife to morgue, and police processed crime scene for 16 hours without a warrant, finding evidence incriminating husband. Husband moved to suppress warrantless search. Supreme Court held there is no murder scene exception to the Warrant Clause of the Fourth Amendment, reversing the Supreme Court of Appeals of West Virginia, which held that after a homicide crime scene was secured for investigation, a search of "anything and everything found within the crime scene area 'was' within the law." The Supreme Court applied Mincey v. Arizona, 437 US 385 (1978), which flatly rejected a murder scene exception to the Warrant Clause. Held once scene was secure, police should have obtained warrant.

U.S. v. Real Property Located at 15324 County Highway E, No. 99-3190, 2000 U.S. App. LEXIS 15634 (7th Cir. 7/6/00). The 7th Circuit sustained the use of a SEEKIR Thermal Imager with an attached 8 mm video recorder. The Court held thermal imaging is a not search within the meaning of the Fourth Amendment. Homeowners lack a reasonable expectation of privacy in the heat emitted from their homes. Heat emanations are like garbage left at the curbside, or smoke rising from a chimney, or the scent of drugs that dogs can detect in luggage.

United States v. McIver, ___ F.3d ___ (9^th Cir. No. 98-30145, 8/6/99). Warrantless placement of a tracking device on a vehicle does not constitute a Fourth Amendment search. Builds on New York v. Class, 475 U.S. 106 (1986)(opening car door to move papers to read VIN not a search); United States v. Rascon-Ortiz, 994 F.2d 749 (10^th Cir. 1993)(using flashlight to view undercarriage of car not a search) and United States v. Karo, 468 U.S. 705 (1984)(placement of beeper in can of ether did not constitute a search).

Maryland v. Dyson, 527 U.S. 465, 119 S.Ct. 2013, 144 L.Ed.2d 442 (1999). Officers received a tip from reliable CI that defendant would be driving a rented red Toyota, license No. DDY 787 containing a quantity of cocaine. Officers corroborated the tipe by observing defendant, a known drug dealer, in a red Toyota Corolla with the same license number. They stopped him, searched the car and arrested him.. Maryland held warrantless search of car must be supported by probable cause and exigent circumstances. The United States Supreme Court summarily reversed in a per curium opinion. The automobile exception allows warrantless searches based on probable cause due to the unique exigency of the automobile itself. 527 U.S. at 466-67.

United States v. Ryan, ___ F.Supp. ___ (No. 98-40094-01-RDR, filed 2/12/99, reh. denied 4/19/99). Stop for speeding and officers claimed following factors supported reasonable suspicion: (1) defendant's hesitation when asked for consent to search; (2) defendant's nervousness; and (3) officer's knowledge of defendant's alleged drug activity. Court held factor one is inappropriate to consider in deciding whether reasonable suspicion exists; two of "little significance" and three insufficient by itself to support reasonable suspicion to detain defendant while awaiting a canine.

United States v. Gray, ___ F.Supp. ___ (No. 98-40103-01-RDR, filed 4/14/99). Officers executed arrest warrant for another at defendant's home. Asked woman who answered door for ID. She left door open when she went to get it. Officers walked in without consent (they asked, she did not respond) and discovered baggie of marijuana and paraphernalia. Leaving door open was not consent to enter, and failure to object to entry is but one factor. Officers failed to prove consent or exigent circumstances, so evidence is suppressed.

United States v. Long, 176 F.3d 1304, 1308 (10^th Cir. 1999). Affirms denial of motion to suppress where TPD officers retrieved garbage bags from atop a trailer parked near a garage. Trailer was outside curtilage and closer to public alley than to Long's garage, so they were abandoned and officers did not violate any expectation of privacy.

United States v. Olguin-Rivera, 168 F.3d 1203, 1205 (10^th Cir. 1999). Troopers stopped vehicle with no tag and arrested the driver for no driver's license. Searched passenger compartment incident to driver's arrest. Opened tailgate and found two bags containing 118 pounds of marijuana. The court held there was no violation of the Fourth Amendment when officers searched cargo area of the Isuzu Rodeo that was covered by retractable cover where search is incident to arrest of driver. The presence of built in cover does not make the area equivalent to an automobile trunk, and when there is no trunk, the entire area is the passenger compartment. Court focuses analysis on parts of the vehicle that can be reached without exiting the vehicle.

Florida v. White, 526 U.S. 559, 119 S.Ct. 1555, 143 L.Ed2d 748 (1999). When officers have probable cause to believe that a vehicle is forfeitable contraband, they do not have to obtain a warrant to seize and search the car. Analogizing to the inherent mobility doctrine first announced in Carroll v. United States, 267 U.S. 132, 149 (1925), the Court said the need to seize readily movable contraband before it is spirited away is "equally weighty when the automobile, as opposed to its contents, is the contraband the police seek to secure."

Wilson v. Layne, 526 U.S. 603, 119 S.Ct. 1692, 143 L.Ed2d 818, (1999); and Hanlon v. Berger, 526 U.S. 808, 119 S.Ct. 1706, 143 L.Ed2d 978, (1999). Allowing a newspaper reporter and photographer or other third parties not involved in warrant execution to accompany federal marshals and county police officers into a home to serve a felony fugitive warrant, or to accompany fish and wildlife officers while searching a 75,000 acre ranch for evidence of poaching, violates the Fourth Amendment to the United States Constitution. Rights were not clearly established in 1992 or 1993, so defendants were entitled to qualified immunity.

State v. Toothman, 267 Kan. 412, 985 P.2d 701 (1999). Extremely nervous individual who appeared to be on drugs and appeared to be in a stolen car provided reasonable suspicion for a Terry stop and incident to the defendant's arrest for expired tag and no driver's license.

State v. Cardenas, 26 Kan.App.2d 177, 980 P.2d 594 (1999). Search warrant which fails to list any items of evidence or contraband to be seized, the warrant is a general search warrant and is fatally defective.

Wyoming v. Houghton, 526 U.S. 295, 119 S.Ct. 1297, 143 L.Ed.2d 408 (1999). If there is probable cause to search a vehicle for drugs, officers can look anywhere in that vehicle where drugs might be concealed, including a passenger's purse.

State v. Rexroat, 266 Kan. 50, 966 P.2d 666 (1999). State has burden to prove consent to search is voluntarily, intelligently and knowingly given. Trier of fact must decide issue in light of the totality of the circumstances, and its decision will not be reversed unless clearly erroneous.

Lauro v. City of New York, ___ F.3d ___ 2000 WL 1035947 (C.A.2 - N.Y.) "Perp walk" consisting of walking a burglary suspect out of station, driving him around the block, and taking him back into station, so that media can film the walk, violates plaintiff's rights under the Fourth Amendment. However, rights were not clearly established so officer is entitled to qualified immunity. Affirming in part & reversing in part ___ F.Supp. ___ (No. 95 Civ. 8908 (AGS), S.D.N.Y) 1999 U.S. Dist. LEXIS 1989 , 1999 WL 101245 (2/25/99).

West Covina v. Perkins, ___ U.S. ___, 119 S.Ct. 678 (1999). United States Supreme Court held the Constitution does not requires a State or its local entities to give detailed and specific instructions or advice to owners who seek return of property lawfully seized but no longer needed for police investigation or criminal prosecution. Due process clause does not require the additional information required by the Ninth Circuit, noting that the aggrieved property owners can discover those procedures on their own by reference to published, generally available state statutes and case law, such as the procedures set forth in K.S.A.§§ 22-2506, 22-2512 (1995 and Supp. 1998).

United States v. Rith, 164 F.3d 1323 (10^th Cir.), rev. denied ___ U.S. ___ (1999 WL279818). Circuit set forth the rules on authority for consent to search a home. The defendant's parents believed defendant was involved in gang activity and saw him carrying guns into their home. The parents requested officers to search the house to determine whether the guns were stolen. They gave the officers a house key, but did not accompany them to the home. Defendant, an 18 year old who did not pay rent, initially denied entry and asked for a search warrant, but stated "okay, come in," when officers showed him the house key. Court held that a valid consent given by someone with authority cannot be revoked by a co-occupant's denial of consent, even if the denial is clear and contemporaneous with the search. Court held the state proves authority by showing either (1) mutual use of the property by virtue of joint access, or (2) control for most purposes over it. The court also noted that a presumption of control exists where the co-occupants are parents and children.

Traffic Stops

In Re Huhammad F., N.Y. No. 160, 68 L.W. 1356 (1999). Suspicionless stops of cabs for safety checks violates the Fourth Amendment. Officers were to stop cabs in high-crime areas to ensure the safety of drivers. Officers would hand driver safety pamphlet, observe passengers, often order them out and search under the seats. Officers had discretion on how many cabs to stop, location of stops, and number of stops to make during shift. Court holds reasonableness requirement of Brown v. Texas, 443 U.S. 47 (1979) not met.

State v. Slater, ___ Kan. ___ (No. 81374 7/9/99). DUI stop based on anonymous tip of suspected 10-46. District court suppressed all evidence. Supreme court reversed, holding RS determined by both content and reliability in addition to threat to public safety as balanced against intrusion into citizen's freedom and privacy. Although anonymous tip is lowest in reliability, quality of information given, subsequently verified by officer prior to stop, justified stop under totality of circumstances.

United States v. Magallanes, No. 98-2238 (unpublished opinion filed 4/23/99). Stop for 58 in a 55 m.p.h. zone not illegally pretextual, even though defendant had been previously stopped and first officer radioed in vehicle as a "good check." Officers properly obtained oral consent to search based on fact that while being issued citation for logbook violations, logbook indicated frequent stops and placing himself out of service, inconsistent answers about his recent travels, and nervousness and confusion. Upon discovering a large sum of cash bundled by denomination, officers properly handcuffed for safety and continued search.

Wyoming v. Houghton, ___ U.S. ___ (No. 98-184, 67 L.W. No. 11, 9/29/98 argued week of January 11, 1999). Automobile exception allows warrantless search of passenger's personal belongings in passenger compartment of vehicle stopped for traffic violations when there is PC as to car generally, but not specifically as to passenger or purse.

1997-98 Case Update List

July 1, 1997 to December 31, 1998

ADA

Griffin v. Steeltek, Inc., ___ F.3d ___ (10^th Cir. No. 97-5103 1998). Applicant had right to sue under ADA for illegal questions in interview such as prior workers compensation claims and whether he had any disabilities, despite employers argument there was no showing applicant was disabled or perceived as disabled.

Colwell v. Suffolk County (N.Y.) Police Department, ___ F.3d ___ (No.97-9019, 2^nd Cir. 1998). Discharge of police officers who were on light duty longer than 6 months because they could not engage in confrontational situations did not violate the ADA.

Kees v. Wallenstein, ___ F.3d ___ (No.97-35559, 9th Cir. 1998). Discharge of corrections officers permanently assigned to light duty because of inability to have contact with inmates due to medical condition did not violate the ADA. Keeping a worker on light-duty status for too long changes the essential function of the job.

Gorman v. Bartch, 152 F.3d 907 (8th Cir. 1998). Transportation of an arrestee to the police station or jail is a "service" covered by Title II of the ADA. NOTE: This case has been appealed to the United States Supreme Court and is set for argument on 4/23/02. See the Case Watch list for details.

ADMINISTRATIVE SEARCH WARRANTS

Board of County Commissioners of Johnson County v. Grant, 264 Kan. 58, 954 P.2d 695 (1998). Inspections of private residential properties to remove private connections from sanitary sewer system were reasonable dwelling searches under the Fourth Amendment.

ARREST

State v. Mitchell, 265 Kan. 238, 960 P.2d 200 (1998). Traffic stop is more analogous to investigative detention than custodial arrest. Governed by Terry v. Ohio, 392 U.S. 1, 20 L.Ed.2d 889, 88 S.Ct. 1868 (1968) standards. However, when stop exceeds scope and duration of reasonable traffic stop and proceeds into an interrogation about drugs, evidence later recovered must be suppressed.

Ricci v. Village of Arlington Heights, 116 F.3d 288 (7^th Cir. 1997), cert. granted, 522 U.S. 1038, cert. dismissed as improvidently granted, 523 U.S. 613, 118 S. Ct. 679, 139 L. Ed. 2d 627 (1998). Seventh Circuit held that a warrantless arrest for a fine-only offense did not violate the Fourth Amendment. The U.S. Supreme Court granted certiorari to address two issues: (1) whether the Fourth Amendment's Reasonableness Clause prohibits warrantless arrests in misdemeanor cases that do not involve a breach of peace, and (2) whether a municipality may require its officers to make custodial arrests for a violation of a fine-only ordinance. Cert. dismissed after court discovered arrest was for violation of a business license ordinance rather than a criminal misdemeanor. [Note: This issue was revisited by the United States Supreme Court in Atwater v. City of Lago Vista, 532 U.S. 318, 121 S.Ct. 1536, 149 L.Ed.2d 549 (2001), which held that a warrantless arrest for a fine-only offense did not violate the Fourth Amendment.]

BREATH TESTS

Campbell v. Kansas Dept. of Revenue, 25 Kan.App.2d 430, 962 P.2d 1150, rev. denied 266 Kan. 1107 (1998). Follows Meehan v. K.D.R., 25 Kan.App.2d 183, 959 P.2d 940 (1998) rev. denied 265 Kan. 885, in holding that Intoxilyzer 5000 is sufficiently reliable that no second test is necessary. Allowing suspension without second test complies with due process provisions.

Meehan v. Kansas Department of Revenue, 25 Kan. App. 2d 183, 959 P.2d 940 (1998) rev. denied 265 Kan. 885. Intoxilyzer 5000 is sufficiently reliable that no second test is necessary. Allowing suspension without second test complies with due process provisions.

Criminal History Record Information

State v. Ruff, 266 Kan. 27, 967 P.2d 742 (1998). Prior arrests for crimes very similar to the crime under investigation are probative of probable cause and can be considered by a court in deciding whether to issue a search warrant, even if no conviction results from prior arrests.

CIVIL & CRIMINAL LIABILITY

Myers v. Oklahoma Count Bd. of County Comm'rs., 151 F.3d 1313 (10th Cir. 1998), the court held a policy allowing deadly force "to protect themselves or others when the deputies have probable cause to believe that they are in danger of death or serious bodily harm and that the use of deadly force is reasonably necessary to protect themselves or others" was constitutional. The case involved a barricaded subject who pointed a .22 rifle at the police. Obviously, the police shot him.

Summar v. Bennett, 157 F.3d 1054 (6^th Cir. 1998). Officer who revealed confidential informant's identity was entitled to qualified immunity when CI was assassinated. Duty to protect CI was not clearly established.

Melendez v. Los Angeles, Calif., 63 Cal. App. 4^th 1, 73 Cal.Rptr.2d 469 (19__), cert. denied ___ U.S. ___ (67 U.S.L.W. 3331 11/17/98). Off duty police officers moonlighting for ticket sales who engaged in acts of excessive force were not functioning as peace officers where they failed to comply with relevant statutes and obtain relevant approvals from city council. City not liable under 42 U.S.C. § 1983.

Jean v. Collins, ___ F.3d ___ (4^th Cir. No. 95-7694 9/17/98)(a 6-5 en banc decision). Police officers absolutely immune in 42 U.S.C.§ 1983 suit for failing to turn over exculpatory evidence to counsel for defendant and prosecutor.

Medeiros v. O'Connell, 150 F.3d 164 (2d Cir. 1998). Troopers entitled to immunity for accidental shooting of bus passenger when trying to apprehend hostage taker on the bus. Court stated: "The heroic and selfless conduct of the troopers in this case is the very opposite of conduct that could be said to shock the conscience. As counsel for Medeiros conceded at oral argument, another person in her place might be moved to thank the people who risked their lives to save her son from an armed madman - rather than sue them for money damages."

Jackson v. City of Kansas City, 263 Kan. 143, 947 P.2d 31 (1997). Individual who had been handcuffed and seated on sidewalk by police officers after they responded to report of domestic disturbance, and whose neck was cut by his girlfriend, with whom he had been fighting, while he was handcuffed, sued city. The Supreme Court, Abbott, J., held that: (1) instruction on city's duty of care was not clearly erroneous; (2) instruction on mitigation of damages was not warranted; (3) plaintiff could recover full amounts of medical bills owed, even though he had paid only small portion of bills; (4) award of $150,000 in damages was not excessive; and (5) officers owed duty to plaintiff to protect him from his girlfriend while he was handcuffed and unable to defend himself.

DL HEARINGS

Madison v. Kansas Department of Revenue, 25 Kan. App. 2d 760, 969 P.2d 269 (1998). Minor errors in a DC-27 form do not require suppression at an administrative hearing. Here, officer certified the 11 items normally required for a failure instead of the 8 items required for a refusal.

Zorn v. Kansas Dept. of Revenue, 24 Kan. App. 2d 749, 953 P.2d 1053 (1998). Although district court's de novo review of DL suspension cases is limited to issues raised at administrative hearing, district court is not confined to the agency record. Court can consider a DC-27 form which was not in evidence at administrative hearing.

DISORDERLY CONDUCT

Cook v. Board of Wyandotte Co. Comm., 966 F. Supp. 1049 (1997). Flipping the bird at a highway patrolman is not a crime pursuant to Lewis v. New Orleans, 415 U.S. 130. Therefore, officer is not entitled to immunity in 42 U.S.C. § 1983 suit for wrongful arrest and prosecution.

Domestics

Key v. Hein, Ebert & Weir, Chtd., 265 Kan. 124, 960 P.2d 746 (1998). Warrantless misdemeanor arrests based on a past offense without articulating one or more of the factors in K.S.A. 22-2401(c) is an illegal arrest.

http://www.kscourts.org/Cases-and-Opinions/opinions/supct/1998/19980529/78389.htm

Driving While Suspended

State v. Thomas, 266 Kan. 265, 970 P.2d 986 (1998). Knowledge of suspended status in a felony prosecution is an essential element of offense. Following State v. Lewis, 263 Kan. 843, 953 P.2d 1016 (1998).

DUI

City of Dodge City v. Hadley, 262 Kan. 234, 936 P.2d 1347 (1997). Officer is sent on a disorderly person call. Before he gets there, someone told him the suspect left in a red truck. The officer approached the red truck. Driver exhibited slurred speech, strong odor, a "wooden expression" and glazed eyes. Officer requested SFSTs. Driver refused saying he was stiff and old. Officer arrested him due to his "obvious intoxication." Driver refused. Two officers gave their opinion that driver was too intoxicated to safely operate a vehicle. Defendant claimed that the officer's opinion was inappropriate comment on defendant's guilt. The Court rejected his contention, holding that a nonexpert witness may testify to his or her opinion provided the judge finds such opinion may be rationally based on the perception of the witness and is helpful to a clearer understanding of the witness' testimony. K.S.A. 60-456(a). There was no abuse of discretion in admitting the officers' testimony.

State v. Todd, 262 Kan. 916, 941 P.2d 1374 (1997). Defendant was served a citation for DUI in Jackson county. The officer served him a separate citation for refusing the PBT. Todd checked the box and mailed in the fine for the PBT violation, then claimed that by doing so, the compulsory joinder rule barred his prosecution for DUI. The district court dismissed the DUI charge. The Kansas Supreme Court reversed, holding there was no identity of the elements between refusing the PBT and DUI.

State v. Bishop, 264 Kan. 717, 957 P.2d 369 (1998). No error in admitting open container and breath test in DUI prosecution even though officer did not provide interpreter. Defendants do not have to understand implied consent advisory as long as officer gives both oral and written advisory pursuant to K.S.A. 8-1001(f)(1); Kim v. Kansas Department of Revenue, 22 Kan. App.2d 319, 916 P.2d 47 (1996).

State v. Briggs, 24 Kan.App.2d 621, 950 P.2d 273 (1997). Although evidence established blood serum test can give a 3-20% higher alcohol content, blood serum test showing 0.155 would still reveal a BAC of 0.124. Blood serum tests is proper provided a qualified expert witness testifies to reliable and accurate nature of the test and its general acceptance by other experts. Also, proper to rely upon prior DUI conviction at sentencing even though it was on appeal.

State v. Beam, ___ Kan.App.2d ___, ___ P.2d ___ (No. 80,813 12/11/98). Hospital personnel's act of requiring separate consent to blood draw in addition to LEO's statement pursuant to K.S.A. 8-1001(c) does not require suppression of blood test result.

State v. Neuman, 266 Kan. 319, 970 P.2d 988 (1998). Critical time when LEO must have knowledge of facts giving rise to reasonable, articulable suspicion of criminal activity is at the time of the actual stop, not when the officer activates his emergency lights. Here, officer had reasonable suspicion of DUI after tip from son, saw driver swerve, then immediately failed to yield to emergency vehicle.

State v. Silva, 25 Kan.App.2d 437, 962 P.2d 1146 (1998). No error for state to introduce Intoxilyzer 5000 test result showing 0.114 taken four and one-half hours after defendant last drove without offering expert testimony on how the delay affected defendant's BAC. Court holds test result admissible as "other competent evidence" as defined by K.S.A. 1997 Supp. 8-1013(f).

Campbell v. Kansas Dept. of Revenue, ___ Kan.App.2d ___, 962 P.2d 1150 (1998). No confirming breath test required to admit breath test result, following Meehan v. Kansas Dept. of Revenue, 25 Kan.App.2d 183, 192-94, 959 P.2d. 940 (1998) rev. denied 265 Kan. 885. Officer who observed Campbell driving 72 in a 55 mph zone at 1:10 a.m., smelled alcohol, observed glazed and bloodshot eyes, and obtained statement that Campbell had a few drinks had probable cause to arrest for DUI.

Williams v. Pennsylvania, Cite unknown, rev. denied ___ U.S. ___ (No. 97-1898). No double jeopardy violation where defendant is convicted of DUI and also has his driver's license suspended.

State v. Huser, 265 Kan. 228, 959 P.2d 908 (1998). DUI is distinct from reckless driving, so a conviction or acquittal of one offense will not bar prosecution for the other.

State v. Larson, 265 Kan. 160, 164, 958 P.2d 1154 (1998). Sentence is limited to that of a B misdemeanor when complaint fails to specify the crime severity level. Clarifying State v. Masterson, 261 Kan. 158, 929 P.2d 127 (1996).

State v. Chastain, 265 Kan. 16, 960 P.2d 756 (1998). HGN is scientific; reaffirms State v. Witte, 251 Kan. 313, 836 P.2d 1110 (1992). Also holds that whether office unreasonably interferes with attempt to obtain independent test depends on facts and circumstances of each case. Telling suspect result of the blood test would be higher than the breath test after a deficient sample not unreasonable interference right to independent test. Person who provides an inadequate sample or refuses and has a medical reason is still entitled to an independent test.

State v. Strand, 261 Kan. 895, 898, 933 P.2d 713 (1997). An Intoxilyzer 5000 instrument need not be reinspected following repairs to maintain its certification.

State v. Muck, 262 Kan. 459, 939 P.2d 896 (1997). Officer's testimony that he is a certified operator is hearsay and is an insufficient foundation for admission of breath test results. The State must produce the original documents of certification (officer's card and instrument certificate) at the relevant time period into evidence. (Approving State v. Rohr, 19 Kan.App.2d 869, 878 P.2d 221 (1994).

EVIDENCE

United States v. Castillo, ___ F.3d ___ (No. 96-2251, 10^th Cir. 4/6/98 reprinted in 66 L.W. No. 42 at 1666), Fed.R.Ev. 414, which displaces Fed.R.Ev. 404(b)'s ban on character or propensity evidence in child molestation cases, does not violate the Fifth Amendment's Due Process clause.

U.S. v. Scheffer, 523 U.S. 303, 118 S.Ct. 1261, 140 L.Ed.2d 413 (1998). Defendant has no absolute right to tell jurors that he passed a polygraph test.

EMPLOYMENT

LaChance v. Erickson, 522 U.S. 262, 118 S.Ct. 753 (1998). Unanimous holding: public employees can be disciplined for untruthfulness in statements to investigators looking into their misconduct. In Bryson v. United States, 396 U.S. 64 (1969), we said: "Our legal system provides methods for challenging the Government's right to ask questions–lying is not one of them. A citizen may decline to answer the question, or answer it honestly, but he cannot with impunity knowingly and willfully answer with a falsehood." Id., at 72 (footnote omitted).Shahar v. Bowers, 114 F.3d 1097 (11^th Cir. 19__), cert. denied ___ U.S. ___ (No. 97-751 1/12/98). Georgia Attorney General did not violate lesbian's constitutional rights by revoking employment offer based on her marriage to another woman.

FIRST AMENDMENT

Olmer v. City of Lincoln, ___ F.Supp. ___ (1998 WL 774625 D. Neb.) Injunction can issue prohibiting abortion protesters from engaging in focused picketing near a place of worship. Purpose of ordinance was to prevent up-close display of gruesome pictures which might upset children. However, ordinance was not narrowly tailored to achieve purpose because it did not prohibit handing out leaflets with gruesome pictures and unnecessarily banned persons from displaying posters with innocuous messages or those that parishioners might want to see.

Dill v. City of Edmond, Oklahoma, 155 F.3d 1193 (10^th Cir. 1998). Reverses summary judgment for defendants in a 42 U.S.C. § 1983 action. Detective refused to write a report falsely stating he discovered incriminating evidence at a crime scene. Superiors transferred him to less desirable patrol position and made him work weekends. Detective wrote letter to the chief stating he was aware of exculpatory evidence that had not been made public. He was transferred back to detective division, but was not given any more homicide assignment. City must prove its interests outweigh Dill's in discussing possible police misconduct. City not entitled to qualified immunity because it should have known it was unconstitutional to transfer Dill for exercising First Amendment rights.

FLSA

Stone v. City of Kiowa, 263 Kan. 502, 950 P.2d 1305 (1997). Police officers were not entitled to overtime compensation nor was there any breach of contract when city failed to pay for "on call" time. On call duties did not prevent officers from using time for personal purposes and restrictions were not so burdensome to make the hours "predominately working," and officers were "rarely burdened" with official duties while on call. There were times when city administrator had to take an accident report because officers did not respond to page.

Moreau v. Harris County, ___ F.3d ___ (No. No 97-20796 5^th Cir. 1998). 1985 amendments to the relevant FLSA provision on compensatory time (29 U.S.C.§ 207(o)) do not grant employees the sole right to choose how accrued compensatory time will be used. In the absence of a negotiated agreement to the contrary, the employer may make rules governing the issue and can require employees to keep accrued time below a certain level.

Imada v. City of Hercules, ___ F.3d ___ (9^th Cir. No. 97-15405, 3/17/98). Officers are not entitled to pay for travel time to and from training sessions in other cities.

Dade County, Fla. v. Alvarez, 124 F.3d 1380, (11^th Cir. 1997), reh'g denied, 135F.3d 147 (11^th Cir. 1998), cert. denied 118 S.Ct. 1804 (1998). Police officers required to maintain physical fitness standards for response team positions are not entitled to overtime pay for off-duty physical training hours under FLSA. Training time is not working time when (1) attendance occurs outside of the employee's regular working hours; (2) attendance is voluntary; (3) the course, lecture, or meeting is not directly related to the worker's job; and (4) the employee does not perform any productive work during such attendance.

FREE SPEECH

Harman v. City of New York, ___ F.3d ___ (1998 WL130751). City cannot prohibit agency employees from discussing nonconfidential matters with reporters without permission.

Madsen v. Women's Health Center, 512 U.S. 753, 114 S.Ct. 2516, 129 L.Ed.2d 593 (1994). The Court upheld a 36-feet buffer zone around an abortion clinic into which no protestor could journey but the buffer zone was established by an injunction issued in response to the protesters' repeated violation of a prior injunction prohibiting the blocking of public access to the clinic.

http://www.law.cornell.edu/supct/html/93-880.ZO.html

FORFEITURE PROCEEDINGS

One 1995 Toyota Pickup Truck v. District of Columbia, ___ F.3d ___ (D.C. Cir., No. 96-CV-1494, 10/1/98). Forfeiture of defendant's $15,000 truck for his first conviction of solicitation of prostitution was grossly disproportionate punishment to the crime, which provided for a $300 fine of which only $150 was assessed. Follows excessiveness test of Bajakajain.

United States v. Bajakajian, 524 U.S. 321, 118 S.Ct. 2028, 141 L.Ed.2d 314 (1998). Forfeiture of $357,144 in currency for transporting more than $100,000 out of the United States without reporting in violation of 31 U.S.C. § 5316(a)(1)(A) is a fine within the meaning of the excessive fines clause and is excessive in violation of the Eighth Amendment. Amount is "grossly disproportional" to the gravity of the offense.

Kansas Highway Patrol v. 1985 Chevrolet Astro Van, 24 Kan.App.2d 841, 954 P.2d 718 (1998). Innocent owner of gun and cash confiscated during a car stop sufficiently rebutted presumption in favor of forfeiture under K.S.A. 60-4112(j) by filing claim and submitting affidavit stating he was not involved with illegal activity.

Gang Evidence

State v. Sims, 265 Kan. 166, 960 P.2d 1271 (1998). Admissible where there is sufficient proof that membership or activity is related to the crime charged.

HABITUAL VIOLATOR

State v. Alexander, ___ Kan. App. 2d ___ (No. ______ 2/6/98). District court did not err in granting State's motion in limine prohibiting defendant from presenting compulsion evidence under K.S.A. 21-3209.

State v. Lewis, 263 Kan. 843, 953 P.2d 1016 (1998). Knowledge of habitual violator status is essential element of offense of felony driving while habitual violator. Reversing State v. Lewis, 23 Kan. App. 2d 758, 935 P.2d 1072 (1997).

HIGH SPEED PURSUITS

County of Sacramento v. Lewis, 523 U.S. 833, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998). Officer pursued two youths on a motorcycle at high speeds. After 75 second chase covering 1.3 miles, 16-year old fell off motorcycle and run over by officer's car. Federal district court dismissed, but 9^th Circuit reversed, holding that jurors should decide whether officer showed "a reckless disregard" for the lives and safety of the youths when deciding to give chase. The United States Supreme Court unanimously held that a police officer does not violate substantive due process rights of an individual by causing his death through deliberate or reckless indifference to life in a high-speed automobile chase aimed at apprehending a suspected offender. Protection against government arbitrariness is the core of due process, but only the most egregious executive actions can be "arbitrary" in the constitutional sense. The standard of conduct that "shocks the conscience" is a more appropriate standard, but this standard must be applied with full cognizance of the facts at issue. Since the officer in this case had no intent to harm the suspect, in the chase, the officer's conduct does not rise to a level which "shocks the conscience."

Identification

State v. Lawson, 25 Kan.App.2d 138, 959 P.2d 923 (1998). One-person show ups by law enforcement are condemned in the absence of exigent circumstances.

INTERROGATION

State v. Dudley, 264 Kan. 640, 957 P.2d 445 (1998). Unwarned voluntary 30-minute confession in which officer asked no questions followed by two interrogation sessions does not violate defendant's rights.

State v. Donesay, 265 Kan. 60, 959 P.2d 862 (1998). Detective questioned suspect in hospital where he was recovering from self-inflicted gunshot wound. Suspect initialed Miranda consent form, but refused to talk until later. Detective continued asking questions about incident under investigation and suspect's willingness to participate. When suspect did not want to answer, detective clarified and continued with questions. Court held in the absence of unambiguous assertion of right to remain silent detective may ask questions to clarify.

State v. Speed, 265 Kan. 26, 961 P.2d 13 (1998). Factors used to determine whether confession are voluntary include the suspect's mental condition, the manner and duration of the interrogation, the ability of the accused to speak with the outside world, the accused age, intellect and background, and the fairness of the officers in conducting the interrogation.

State v. Heath, 264 Kan. 557, 957 P.2d 449 (1998). Questioning was noncustodial where detectives had suspect voluntarily come to the station for questioning. Focused suspicions of officers are irrelevant if not made known to the defendant.

U.S. v. Sullivan, 138 F.3d 126 (4^th Cir. 1998). Brief dialogue between officer & citizen after purpose of traffic stop was completed did not amount to custody requiring Miranda warnings. Defendant remained in his vehicle, officer did not ask questions until after returning license & registration, and the officer did not employ physical or verbal force indicating detention. Officer's repeated questions and comments coaxing a response were prompted solely by the defendant's failure to respond.

United States v. Bailey, 979 F. Supp. 1315 (D. Kan. 1997). Topeka police officers executed a search warrant at 1201 S.W. Western at 5:38 p.m. Upon entering, Officer Voigt found Bailey, U.S. Currency and cocaine base in plain view. Voigt read the search warrant to Bailey, Mirandized him, then questioned him after he said he would talk. Bailey gave several untruthful statements, and Voigt indicated to Bailey he did not believe him. Voigt then explained that due to Bailey's prior felony drug conviction he could be facing prison. Voigt also stated that if Bailey wanted "to have any chance of working some of his charges off" he needed to tell the truth. Bailey then came clean and told police where he got the drugs and what he planned to do with them. Baily filed a motion to suppress the evidence and his statements alleging the statement was coerced and that he was drunk and stoned. Officer Voigt testified that Bailey's mental processes were not noticeably impaired and he was responsive to questions. Bailey claimed he did not say anything and that police simply made it all up. The court found that despite a minor error in relating Bailey's criminal history, nothing in Voigt's actions rendered the confession involuntary. The court said Bailey's "poorly spun tale" of the events was of "dubious quality" and not worthy of belief, and denied the motion to suppress.

Ohio Adult Parole Authority et Al . V. Woodard, 523 U.S. 272, 118 S.Ct. ___, 140 L.Ed.2d 387 (1998). Ohio's clemency proceedings which give an inmate the option of voluntarily participating in an interview as part of the clemency process does not violate his Fifth Amendment rights. That Amendment protects against compelled self-incrimination. See Baxter v. Palmigiano, 425 U.S. 308, 316-318. Even if nothing in the clemency procedure grants applicants immunity for what they might say or makes the interview in any way confidential, and that the Authority will draw adverse inferences from respondent's refusal to answer questions -- his testimony at a voluntary interview would not be "compelled."

In The Matter of B.M.B., 264 Kan. 417, 955 P.2d 1302 (1998). The court held:

"A juvenile under 14 years of age must be given an opportunity to consult with his or her parent, guardian or attorney as to whether he or she will waive his or her rights to an attorney and against self-incrimination. Both the parent and juvenile shall be advised of the juvenile's right to an attorney and to remain silent. Absent such warning and consultation, a statement of confession cannot be used against the juvenile at a subsequent hearing or trial." 264 Kan. at 432-33. Most of this language has now been codified at K.S.A. 38-2333.

State v. Morfitt, 25 Kan. App. 2d 8, 956 P.2d 719, rev. denied 265 Kan.___ (1998). Detectives notified suspect he was going to jail for attempted second-degree murder, aggravated kidnaping, aggravated indecent liberties, and aggravated burglary involving an eight year old girl. Suspect responded "You all are scaring me I think, yeah, I shouldn't . . . say anymore." Detectives asked if he wanted to quit talking and explained what would happen if the report went to the D.A. as matters stood. Also explained to suspect that he did not have to say anything. Suspect said he didn't want to talk, but didn't want to go to jail either, so he agreed to talk. Court held suspect's invocation was equivocal and almost immediately was followed by his expressed desire to keep talking to the detectives. Follows Davis v. United States, 512 U.S. 452, 459, 114 S. Ct. 2350, 129 L. Ed. 2d 362 (1994), and State v. Hickles, 261 Kan. 74, 929 P.2d 141 (1996).

JURIES

Campbell v. Louisiana, ___ F.3d ___, cert. denied (No. 96-1584, 4/21/98). White criminal defendant had standing to raise discrimination against blacks in the selection of grand jurors.

MISCELLANEOUS

State v. Wakole, 265 Kan. 53, 959 P.2d 882 (1998). Indian Nations license plates are valid in Kansas if they are valid in the state where the tribe is located pursuant to the reciprocity statute, K.S.A. 8-138a. Stay tuned for 10^th Circuit's ruling in Prairie Band of Potawatomi Indians v. Pierce, 64 F.Supp.2d 1113 (D.Kan. 1999)(10th Cir. No. 99-3324).

The 1994 Driver's Privacy Protection Act may or may not be unconstitutional, depending on which federal circuit you are located in. The Seventh and Tenth Circuits (which includes Kansas) have upheld the act against a 10^th Amendment challenge. The Fourth Circuit struck it down. See Oklahoma v. United States, 67 U.S.L.W. 1348 (10^th Cir. 1998); Travis v. Reno, ___ F.3d ___ (No. 98-2881, 7^th Cir. 1998); Condon v. Reno, 155 F.3d 453 (4^th Cir. 1998), cert. granted, ___ U.S. ___ (No. 98-1464 argued November 10, 1999).

Municipal Court - Jurisdiction

City of Junction City v. Cadoret, 263 Kan. 164, 946 P.2d 1356 (1997). Cities may not prosecute third or subsequent DUI offenses in municipal court because state law (K.S.A. 1996 Supp. 8-1567(f) makes such offenses felonies. Pursuant to K.S.A. 22-2601, felonies may only be prosecuted in the district courts. K.S.A. 1996 Supp. 8-1567(m) does not allow cities to omit the severity classification of a crime designated as a felony in a state statute that uniformly applies throughout the state and punish those offenders in municipal court.

MUNICIPAL COURT CONVICTIONS - SENTENCING

State v. Messinger, 25 Kan.App.2d 339, 967 P.2d 1081 (1998). Follows State v. Vega-Fuentes in holding that six prior municipal court convictions were properly aggregated to two person felonies for sentencing guidelines purposes, even though four municipal batteries occurred on the same day (with three different victims).

State v. Vega-Fuentes, 264 Kan. 10, 955 P.2d 1235 (1998). K.S.A. 21-4710(d)(7) and K.S.A. 21-4711(a) allow municipal ordinance violations comparable to A or B misdemeanors to be aggregated to a person felony for criminal history purposes.

OFF-DUTY EMPLOYMENT

Edwards v. City of Goldsboro, 891 F.Supp. 406 (E.D.N.C. 1997). Officer suspended for violating department policy prohibiting secondary employment without chief's permission. Taught off-duty firearms course. Was suspended and brought 1983 action claiming violation of rights. Court held there was no constitutional right to secondary employment.

POLICE CHIEFS - POLITICALLY MOTIVATED DISCRIMINATION

Wagner v. Devine, 122 F.3d 53 (1^st Cir. 19__), cert. denied ___ U.S. ___ (139 L.Ed.2d No. 7, C-7, 3/18/98). Police Chief is a policy-making official and has no right to be free from discriminatory treatment by council members based on the Chief's political views. Case involved a chief who asserted First Amendment claim that he was forced to resign as a result of harassment by council members who were political opponents of the mayor who had appointed the chief.

PRIVACY

Kallstrom v. City of Columbus, 136 F.3d 1055 (6^th Cir. 1998). Police officers engaged in undercover drug operations have a privacy interest in personal security and bodily integrity which is protected by the Fourteenth amendment. Thus, release of personal information to attorney of violent gang members under Ohio's Public Records Act, which in turn was distributed to gang members, without narrowly tailoring the disclosure to meet the state's (assumed) compelling interest in records disclosure, violated officer's constitutional rights. Officers must be given notice and an opportunity to object when disclosure will be made.

Property

State v. Jimenez, 266 Kan. 59, 966 P.2d 60 (1998). Defendants convicted of felony drug charges sought return of firearms "to their attorney in partial satisfaction of fees." Guns were seized by Topeka Police Department officers during service of a search warrant. Although K.S.A. 21-4206 and K.S.A. 1998 Supp. 22-2512(2)(e) are inapplicable because defendants were not convicted of any of the crimes listed therein, K.S.A. 1998 Supp. 22-2512(2)(g) gave district court discretion to order weapons destroyed.

PROSECUTORIAL IMMUNITY

Kalina v. Fletcher, 522 U.S. 118, 118 S.Ct. 502, 139 L.Ed.2d 471 (1997). County prosecuting attorney is not protected by absolute prosecutorial immunity in 42 U.S.C. § 1983 action for making allegedly false statements of fact in a document summarizing the evidence supporting application for an arrest warrant. See also Imbler v. Fletcher, 118 S.Ct. 502 (1997).

PROSECUTORIAL MISCONDUCT

State v. Donesay, 265 Kan. 60, 959 P.2d 862 (1998). District court erred in allowing testimony of Julie Easter, wife of slain SG County Sheriff's Deputy Kevin Easter, regarding Dep. Easter's relationships. Testimony served only to inflame the passions of the jury

United States v. Singleton, ___ F.3d __ (No. 97-3178 1/8/99)(en banc). Federal prosecutors can offer witnesses promises of leniency in exchange for witness's truthful testimony. Doing so does not violate a federal statute prohibiting "anyone" from offering anything of value in exchange for their testimony.

State v. Gray, 25 Kan.App.2d 83, 958 P.2d 37 (1998). Guilty verdicts of sale of marijuana within 1,000 feet of a school and possession of drug paraphernalia are reversed. During cross, prosecutor asked defendant to exhibit arms, which showed no needle marks. Prosecutor turned from the bench and toward the jury and stated: "Sure saw a lot more on the day we arrested you." Judge admonished jury to disregard, but admonishment came at end of trial. Also, during closing, the prosecutor referred to preliminary testimony not in evidence, expressed his personal opinion of defendant's guilt, tried to define reasonable doubt, questioned how defendant made bail and referred to his own years of experience, and suggested defendant had HIV.

SEARCH & SEIZURE

United States v. Myers, 106 F.3d 936, (10th Cir.), cert. denied, 117 S. Ct. 2446 (1997).

"The use of a ‘flashbang’ device in a house where innocent and unsuspecting children sleep gives us great pause. Certainly, we could not countenance the use of such a device as a routine matter. However, we also recognize that we must review the agents' actions from the perspective of reasonable agents on the scene, who are legitimately concerned with not only doing their job but with their own safety. Although it might seem that the [Kansas Bureau of Investigation]'s actions in this case come dangerously close to a Fourth Amendment violation, we cannot say that their actions were objectively unreasonable given the district court's factual findings. The district court found that the agents knew that Mr. Myers had a history of illegal drug trafficking, and had spent time in federal prison for a firebombing incident, although they were unsuccessful in learning of the details of the incident. The district court obviously credited police testimony that Mr. Myers's lengthy pattern of criminal activity - beginning with the fire bombing in 1971 and continuing until the cocaine conviction in 1988 - made them apprehensive."

United States v. McRae, 153 F.3d 708 (6^th Cir. 1998). Defendant convicted of drug and weapons possession had no legitimate expectation of privacy in a vacant house where he resided for a week but neither leased nor owned.

State v. Rice, 264 Kan. 232, 955 P.2d 1258 (1998). Duty to investigate anonymous call complaining of loud noise and possible marijuana use does not justify detention of all visitors upon entry into an apartment. Visitor's consent to search person was coerced by finding of marijuana inside apartment on window sill.

State v. Jones, 24 Kan.App.2d 405, 947 P.2d 1030 (1997). Emergency doctrine justified officers' warrantless entry and search of a residence to look for a missing subject whose parents were concerned about him. Instead, the officers found the defendant and his drugs and drug paraphernalia therein.

State v. Reason, 263 Kan. 405 (1997). Officer approached BMW with New Mexico temporary tags and both doors open that was in a park in Wichita. Defendant and a passenger were asleep in car. Defendant consented to search of car, but later said it was without consent when cops found crack pipe, large bag of marijuana under back seat, two more in trunk, and cigarette box filled with cocaine. Court said initial contact was voluntary, Reason was advised he was free to go, but chose to stay and talk to officers. Consent that came 20 minutes later during investigatory detention was valid.

State v. Cowdin, 25 Kan.App.2d 176, 959 P.2d 929 (1998). Officers responded to a domestic and saw possibly stolen items. Called suspected thief's wife in and she gave information about stolen items and drugs. Officers prepared affidavit for search warrant, but failed to disclose wife's criminal history which included false reports of rape, or rumors about her affair with an officer. Court of Appeals held affidavit contained sufficient factual information to constitute probable cause. Although affidavit should have disclosed wife's criminal history, omission was immaterial to probable cause based on the detailed facts the affidavit contained.

United States v. Rumph, ___ F.3d ___ (6^th Cir. No. 97-3135 (1998). Officers conducting zero tolerance activity in high crime area saw large group of people in front of Rumph's house. Rumph was a known aggravated murder. When police drove by they saw Rumph walk quickly away and bend down and put something behind wheel of car in driveway. Police stopped Rumph and were concerned about his clenched left fist. They searched him and found drugs in his hand. Also found drugs under car in driveway. Search was reasonable. Police properly concerned for their safety to open his hand, and drugs under car were located a short distance from public sidewalk and visible from sidewalk. No legitimate expectation of privacy to items in driveway.

Minnesota v. Carter, 525 U.S. 83, 119 S.Ct. 469, 142 L.Ed.2d 373 (1998). Commercial guests in someone else's apartment cannot claim a legitimate expectation of privacy in the premises because of the purely commercial nature of the transaction, the relatively short period of time they were on the premises and the lack of any previous connection between the guests and the tenant. Because the guests could not claim a legitimate subjective expectation of privacy officer's act of peering into a ground floor apartment window, even if a "search," did not violate the guests' Fourth Amendment rights.

Knowles v. Iowa, 525 U.S. 113, 119 S.Ct. 484, 142 L.Ed.2d 492 (1998). Court unanimously struck down an Iowa statute allowing search of persons and vehicles "incident to citation" for minor offenses such as speeding.

United States v. Washington, ___ F.3d ___ (11^th Cir. 1998 No. 97-2146 8/29/98). Federal agents who boarded bus, showed identification, and proceeded to question passengers used coercive tactics to obtain consent to search the defendant's person, a search that yielded $3500 worth of powder cocaine. Although police do not always have a duty to advise persons of the right to refuse consent, when a show of authority such as this leads to the search it is doubtful a passenger would think he or she had the choice to ignore the police presence. [Note: May no longer be good law. See United States v. Drayton, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 01-631, 6/17/2002).]

United States v. Hunnicutt, 135 F.3d 1345 (10^th Cir. 1998). Detaining driver after a weaving stop and inquiring about guns and drugs was not unreasonable under the circumstances where driver had a suspended license, had no proof that he owned the automobile, and no proof he was otherwise authorized to operate it. Further detention for 15 minutes while awaiting a drug dog was not unreasonable either where person driver claimed to have purchased vehicle from was not the registered owner, driver failed to promptly pull over leading officer to believe passengers may have been hiding objects, and passengers made furtive gestures after the stop. Driver was validly under arrest at that point and/or the detention was supported by reasonable suspicion.

Pennsylvania Board of Probation and Parole v. Scott, 524 U.S. 357 (1998). Exclusionary rule does not apply to parole revocation hearings. Unlawfully seized evidence admissible in such proceedings. Decision below 698 A.2d 32.

United States v. Nicholson, ___ F.3d ___ (10^th Cir. No. 97-6114, filed May 5, 1998). Suspicionless police sweep of a bus in interstate travel consisting of detectives removal of luggage from overhead rack (and luggage hold) and manipulation of the bag (prior to sniffing odor of drugs) constitutes an unreasonable search and seizure. Court notes a sniff may have made the case turn out different.

United States v. Winningham, ___ F.3d ___ (10^th Cir. 1998). Detaining van's occupants for six minutes to await a drug sniffing dog was unreasonable seizure when officer searched van's interior and found no undocumented aliens nor reason to suspect presence of narcotics. Consent given for search was involuntary.

State v. Wonders, 263 Kan. 582, 952 P.2d 1351 (1998). Officers can do a "Terry" search of a suspect's pockets if there is reasonable or probable cause to believe the nature of the items located therein (usually drugs) is incriminating and this incriminating nature is immediately apparent to the searching officer. Court will consider the totality of the circumstances, including the officer's credibility, training, education and experience. Adopts Fourth Amendment interpretation set forth in Minnesota v. Dickerson, 508 U.S. 366, 124 L. Ed. 2d 334, 113 S. Ct. 2130 (1993), and refuses to construe Section 15 of the Kansas Bill of Rights differently.

State v. Hardyway, 264 Kan. 451, 958 P.2d 618 (1998). Voluntariness of consent to search car after a traffic stop will not be reversed on appeal unless clearly erroneous. SCAT officers stopped car after passenger visited to known drug house and driver committed traffic violations. Driver and passenger were informed of violations, then passenger was asked for consent search of person which yielded drugs. Supreme Court held consent valid based on totality of the circumstances. Officer's conduct must be viewed with "common sense" considering "ordinary human experience." Policy is to prevent unrealistic second guessing of police officer's decisions and defer to trained officer's ability to distinguish between innocent and suspicious activity.

United States v. Ramirez, 523 U.S. ___, 140 L.Ed.2d 191, 118 S.Ct. ___ (1998), reversing 91 F.3d 1297. The Fourth Amendment does not hold officers to a higher standard when a "no-knock" entry results in the destruction of property. Where officers had probable cause to believe an armed, dangerous escaped prisoner was present and obtained a no knock warrant to search, breaking a single window in respondent's garage and pointing a gun through the opening did not violate the Fourth Amendment and 18 U.S.C. § 3109.

SEXUAL HARASSMENT

Burlington Industries v. Ellerth, Inc, 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998) & Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998). Employer may be liable for quid pro quo sexual harassment the same as hostile work environment harassment, even if they didn't know about the conduct. Reasonable steps to prevent harassment is an affirmative defense.

Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 118 S.Ct. 998, 140 L.Ed.2d 201, (1998). Same-sex sexual harassment is actionable as sex discrimination under Title VII of Civil Rights Act of 1964 (42 U.S.C. § 2000e-2(a)(1)).

TRAFFIC STOPS

State v. Campbell, 24 Kan.App.2d 553, 948 P.2d 684, rev. denied 263 Kan. ___ (1997). Officer's knowledge, gained through official channels (other officer's knowledge of suspended driver's license a few days before) is probable cause to stop a vehicle. Court applies collective knowledge doctrine.

State v. Neuman, 266 Kan. 319, 970 P.2d 988 (No. 79,701 12/11/98). Critical time when LEO must have knowledge of facts giving rise to reasonable, articulable suspicion of criminal activity is at the time of the actual stop, not when the officer activates his emergency lights. Here, officer had reasonable suspicion of DUI after tip from son, saw driver swerve, then immediately failed to yield to emergency vehicle.

United States v. Salzano, 149 F.3d 1238 (10^th Cir. 1998). Continued warrantless detention of motor home after termination of traffic stop was not supported by reasonable suspicion.

State v. DeMarco, 263 Kan. 727, 952 P.2d 1256 (1998). Allegedly pretextual stop is valid because defendant failed to signal, regardless of officer's motive. Whren v. United States, 517 U.S. 806, 813 (1996). However, stop exceeded reasonable duration when radio indicated no hits, defendant repeatedly denied consent to search, but was detained over 20 minutes while waiting for a canine unit. Nervousness alone, along with inconsistent travel plans given by two occupants, do not rise to the level of reasonable suspicion.

TORTS

Fettke v. City of Wichita, 264 Kan. 629, 957 P.2d 409 (1998). City immune from damages under K.S.A. 75-6104(d) for release of police officer's name, in violation of department policy, who was involved in a shooting.

Jackson v. City of Kansas City, 263 Kan. 143, 947 P.2d 31 (1997). Individual who had been handcuffed and seated on sidewalk by police officers after they responded to report of domestic disturbance, and whose neck was cut by his girlfriend, with whom he had been fighting, while he was handcuffed, sued city. The Wyandotte District Court, John J. Bukaty, Jr., J., entered judgment on jury verdict awarding $158,500 to plaintiff, and city appealed. The Supreme Court, Abbott, J., held that: (1) instruction on city's duty of care was not clearly erroneous; (2) instruction on mitigation of damages was not warranted; (3) plaintiff could recover full amounts of medical bills owed, even though he had paid only small portion of bills; (4) award of $150,000 in damages was not excessive; and (5) officers owed duty to plaintiff to protect him from his girlfriend while he was handcuffed and unable to defend himself.

Victim's Rights

State v. Parks, 265 Kan. 644, 648, 962 P.2d 486 (1998). Neither Art. 15, § 15 of the Kansas Constitution, nor K.S.A. 74-7333 et seq. express a conscience policy decision that only crime victims or members of the crime victim's family can address the court at sentencing.

Workers' Compensation

Cooper v. Dayton, 120 Ohio App.3d 34, 696 N.E.2d 640, cert. denied ___ U.S. ___ (1997). City responsible for workers' compensation payments due an off-duty officer working plain clothes security when injured attempting to make a shoplifting arrest, even though officer was working for someone else, the employment was not approved by the department, and extra-duty employees are required to carry insurance but claimant did not. Officer showed his city issued badge and was outside his private loss-prevention role in making arrest, and city benefitted from attempted arrest.

Use of Force

Synder v. Trepangnier, 141 F.3d 791 (5^th Cir. 1998). Jury finding of qualified immunity affirmed even though jury found officer used excessive force. Officer shot fleeing, apparently unarmed suspect in the back. The court indicated that jury was apparently influenced by fact the gun was never found, even though it was reasonable for the officer to conclude the suspect was armed.

Quick Links

2000 Cases

1999 Cases

1998 Cases

1996 and prior case archives

Revised January 28, 2017

John J. Knoll