2000s Case Update List

Cased from 2000 - 2010


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Full text of United States Supreme Court decisions.

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2010 Case Update List

January 1, 2010 through December 31, 2010 (or thereabouts)

Attorney Fees

Perdue v. Kenny A., 556 U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 08-970, filed 04/21/10). In 2005, Kenny A. and eight other plaintiffs (collectively "Kenny A.") settled a federal civil rights class action lawsuit against the Georgia Department of Human Resources and others. The settlement provided, in relevant part, that "the Plaintiff Class is entitled to recover its expenses of litigation, including reasonable attorneys fees . . . pursuant to 42 U.S.C. § 1988." The District Court for the Northern District of Georgia approved a lodestar amount and a fee enhancement, which the court attributed to the extraordinary performance by Kenny A.'s counsel. The Court of Appeals for the Eleventh Circuit affirmed. The U.S. Supreme Court reversed holding the 11th Circuit did not apply the correct standard. "We have stated in previous cases that such an increase is permitted in extraordinary circumstances, and we reaffirm that rule. But as we have also said in prior cases, there is a strong presumption that the lodestar is sufficient; factors subsumed in the lodestar calculation cannot be used as a ground for increasing an award above the lodestar; and a party seeking fees has the burden of identifying a factor that the lodestar does not adequately take into account and proving with specificity that an enhanced fee is justified. Because the District Court did not apply these standards, we reverse the decision below and remand for further proceedings consistent with this opinion."

Breath Tests

Barnett v. Kansas Department of Revenue, ___ Kan.App.2d ___, 238 P.3d 324 (No. 102474, filed 09/03/10). If the legislature intended to allow hearings to encompass proper certification of Intoxilyzers—rather than just whether the machine has been certified—it could have done so in the language of K.S.A. 2009 Supp. 8-1020(h)(2)(D). That portion of Meehan v. Kansas Dept. of Revenue, 25 Kan. App. 2d 183, 959 P.2d 940, rev. denied 265 Kan. 885 (1998), allowing a licensee can raise inconsistencies in the certification records or whether the testing officer actually followed all operational protocols has been statutorily overruled.

State v. Ernesti, 291 Kan. 54, 239 P.3d 40 (No. 101925, filed 08/27/10). State's appeal from DG county District Judge Paula Martin's ruling that due to new KDHE regulations issued in March 2008, previously certified instruments became "uncertified." Reversed and remanded. 77-425 preserves the validity of certifications until their expiration date, even though the regulation in effect at the time of issuance was revoked. Ernesti was tested on 7/26/08. The initial certification was effective January 15, 2008, until December 31, 2008. The new, revised certificate issued in September 2008 and was effective March 14, 2008, through December 31 2008.

Civil and Criminal Liability

Bowling v. United States, 740 F. Supp. 2d 1240 (D. Kan. 2010). On July 10, 2003, Barron Bowling was involved in a minor car accident with Agent Timothy McCue of the federal Drug Enforcement Administration (DEA). McCue then allegedly beat Bowling for no reason. Bowling later sued McCue and other individuals and entities in federal district court for injuries that arose out of this incident. A reserve deputy investigated the matter and testified for Bowling. Bowling was acquitted of the felony drug charge and convicted of misdemeanor (possession of a marijuana pipe). According to the Bowling findings, “[F]or crossing the ‘thin blue line,’” Bowling, 740 F. Supp. 2d at 1262 n.75, Plaintiff “was shunned, subjected to gossip and defamation by his police colleagues, and treated as a pariah,” id. at 1262. “He was castigated by his superiors, by the prosecutor, by the DEA, and upon his forced retirement [on December 21, 2005,] . . . denied a commission that would allow him to obtain work as a security guard, something police retirees typically rely upon to supplement their limited retirement income.” Id. at 1262 n.75

Manzanares v. City of Albuquerque, ___ F.3d ___ (10th Cir. No. 10-2011, filed 12/17/10). Related to Manzanares v. Higdon, profiled below. See that case for the operative facts. After the jury awarded Manzanares $50,384 in compensatory damages and $150,000 in punitive damages, Manzanares moved to reinstate this action against the City. The district court declined to set aside the dismissal, finding it would be duplicative of the damages he had already recovered from Higdon. Manzanares claimed he should be able to seperately proceed against the city for its own bad acts, even if he could only recover nominal damages and injunctive relief. The Circuit affirmed, finding justice did not require allowing Mr. Manzanares to proceed with a claim of nominal damages against the City.

Bryan v. McPherson, 608 F.3d 614 (9th Cir. No. 08-55622, filed 06/18/10, withdrawn and amended, 11/30/10). In a 42 U.S.C. section 1983 action based on defendant-officer's use of a taser on plaintiff at a traffic stop, denial of summary judgment based on qualified immunity is affirmed where, viewing the circumstances in the light most favorable to plaintiff, defendant's use of the taser was unconstitutionally excessive and a violation of plaintiff's clearly established rights. Police must have reasonable grounds to use a taser. Officer Brian MacPherson used excessive force when, on July 24, 2005, he deployed his X26 taser in dart mode to apprehend Carl Bryan for a seatbelt infraction, where Bryan was obviously and noticeably unarmed (he was wearing boxer shorts only), made no threatening statements or gestures, did not resist arrest or attempt to flee, but was standing inert twenty to twenty-five feet away from the officer. See Bryan v. MacPherson, 608 F.3d 614, 618 (9th Cir. 2010). The X26 taser and similar devices, when used in dart mode, constitute an "intermediate, significant level of force that must be justified by the governmental interest involved." Id. at 622. But MacPherson was entitled to qualified immunity from Bryan’s 42 U.S.C. § 1983 suit, because this principle was not clearly established in 2005 when Officer MacPherson deployed his dart gun on Bryan. The opinion cites Cavanaugh v. Woods Cross City, ___ F.3d ___, 2010 WL 4332289, at *2-4 (10th Cir. 2010), as agreeing with the intermediate force analysis.

Los Angeles County, CA v. Humphries, 556 U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 09-350, filed 11/30/10). In 2001, Craig and Wendy Humphries were arrested on child abuse charges and listed in California's Child Abuse Central Index ("CACI"), which is organized under the Child Abuse and Neglect Reporting Act ("CANRA"). All charges against the Humphrieses were dismissed, and the Humphrieses obtained an order declaring them factually innocent. However, the Humphrieses were unable to contest their listing in the CACI. The Humphrieses sued Los Angeles County pursuant to 42 U.S.C. § 1983 seeking damages and declaratory relief establishing that CANRA and policies related to the CACI are unconstitutional because of the lack of procedures to challenge an individual's inclusion based on a substantiated claim. Los Angeles County argued that as a local government it had no control over CACI procedures because the state government created these policies. The district court agreed and granted defendants summary judgment. The Ninth Circuit reversed and sided with the Humphrieses. It held that that Los Angeles County's liability could flow from its failure to adopt an adequate procedure, and liability should be determined according the requirements established in Monell v. Department of Social Services. It also held the plaintiffs were previaling parties and ordered the defendants to pay $600,000 in attorney fees. In doing so, it said that Monell limitations do not apply to claims for injuctive relief. The Supreme Court reversed, holding that Monell applies whether the suit seeks damages or declaratory relief. If it can be shown that no city or county policy caused plaintiff's alleged damages, these defendants would not be held liable.

Cox v. Campos, (Los Angeles Superior Court, Case No. Unknown). Jurors find in favor of LAPD officer in Woodland Hills man's fatal shooting. Daily News Wire Services. Posted: 11/29/2010 12:53:06 PM PST. Updated: 11/29/2010 01:07:01 PM PST. A jury today found in favor of a Los Angeles police officer in a wrongful death lawsuit brought by a woman who alleged that he and other officers used excessive force in the shooting death of her husband in the Crenshaw area. The 9-3 verdict came after two alternates replaced a pair of jurors on the panel, including a young woman who was excused just this morning. The original panelists began deliberating Nov. 18 and had told Judge William MacLaughlin at one point that they were having trouble mustering the nine- member consensus needed for a verdict. Before the gunfire, Maurice Cox crashed his truck on Crenshaw Boulevard near 57th Street and stayed inside the vehicle for a time. He eventually ran toward a U.S. Bank branch at Crenshaw and Slauson Avenue, where he encountered more officers in the parking lot. The widow's lawyers argued that although her 38-year-old husband pointed an object at officers that they thought was a weapon, he did not pose a threat and that Campos had no reason to fire 13 shots. The object turned out to be a cell phone battery charger. Cox was hit by a total of 10 shots from several officers who fired a total of nearly 50 rounds, according to trial testimony. The fatal wound came from one of four other LAPD officers who were no longer defendants in the case by the time it went to the jury. The plaintiffs' lawyers had dropped all allegations against the others. A video was being made at the time of the shooting by Alex Alonso of streetgangs.com, who captured the gunfire. Part of the shooting also was recorded Advertisement by a service station security camera.

Cavanaugh v. Woods Cross City, ___ F.3d ___ (10th Cir. No. 10-4017, filed 11/03/2010). In an action under 42 U.S.C. section 1983 alleging that defendant-officer's Tasering of plaintiff violated her rights under the Fourth Amendment by using excessive force, the denial of summary judgment based on qualified immunity is affirmed where: 1) although Tasers may not constitute deadly force, their use unquestionably "seizes" the victim in an abrupt and violent manner; 2) plaintiff did not pose an immediate threat to defendant or anyone else at the scene; and 3) a reasonable jury could easily conclude that when the Taser was deployed plaintiff was not fleeing -- she was quickly walking towards her own home -- where defendant could easily arrest her if he so desired. Woods Cross officers were called to Cavanaugh's residence after a domestic dispute. The husband told officers Ms. Cavanaugh stormed out of the house, and had a kitchen knife with her. She had also consumed alcohol and pain killers. One officer remained at the house with the husband. Ms. Cavanaugh returned, walking quickly towards the home. No knife was visible in her hand. The officer that had stayed at the home walked up behind her and tased her in the back, without warning. Ms. Cavanaugh went down, striking her head on the front concrete steps, suffering tramautic brain injury. Prologue: On remand, after hearing the evidence a jury quickly returned a verdict in favor of the police department.

Soto v. City of Bonner Springs, ___ Kan. ___, ___ P.3d ___ (No. 96011, filed 09/03/10), reversing 38 Kan. App. 2d 382, 166 P.3d 1056 (2007). A Bonner Springs officers stopped Soto because his license plate was loose and hanging. The tag came back to a different vehicle. Soto provided a driver's license which identified himself as Jose M. (Mora) Soto, a Hispanic male with a date of birth of December 26, 1973, a height of 5'5", and a weight of 165 lbs. Dispatch advised of a warrant for Jose L. (Luis) Soto, a Hispanic male with a date of birth of December 24, 1973, a height of 5'3", and a weight of 115 lbs. The OLN on the warrant was the same as the suspect's OLN, and the officer confirmed that number and the warrant with the dispatcher. Soto spent 2 ½ days in jail. Once in Johnson County's custody, Soto pointed out that he did not look like the person named in the warrant and was released. Assuming, without deciding a duty existed, and that a private person could be held liable for false imprisonment, the Supreme Court affirmed the grant of summary judgment to Wyandotte County. It found the act of investigating claims that someone had been incorrectly identified as a person named in a warrant was a discretionary act and thus Wyandotte County had immunity pursuant to K.S.A. 75-6104(e). Soto claimed the duty came from K.S.A. 22-2304(1), which states: "The warrant shall be signed by the magistrate and shall contain the name of the defendant, or, if his name is unknown, any name or description by which he can be identified with reasonable certainty." The Court said the statute applied to the magistrate issuing the warrant, not the County, and nothing in the procedure required the officers to perform a broader investigation, e.g., compare fingerprints, access photographs, or take a DNA sample for potential analysis.

Lundstrom v. Romero, 616 F.3d 1108 (10th Cir. 2010) (No. 08-2254). Albuquerque police went to a house on a child welfare call after a neighbor reported hearing a female striking a child and the child screaming. Encountering resistance at the door, the officers pulled weapons on Lundstrom and his girlfriend, Jane Hibner, ordered them from the home, and then left them handcuffed on the front sidewalk while officers searched the home. No child was found in the home. Officers were granted summary judgment based on qualified immunity. The Circuit reversed, holding that Lundstrom and Hibner alleged sufficient facts to demonstrate the officers violated their clearly established constitutional rights. The Circuit held that handcuffing Hibner was not a reasonable response to her actions. Additionally, the Circuit held that the circumstances supported a brief investigatory detention, but objectively reasonable officers would not have prolonged the detention and searched the home on the facts before them.

Stearns v. Clarkson, ___ F.3d ___ (10th Cir. No. 09-3103, filed 08/13/10). Stearns filed a civil rights suit under 42 U.S.C. § 1983 against Cowley County, the City of Winfield, the district attorney and nine individual law enforcement officials, alleging violations of his Fourth Amendment right to be free from unreasonable searches and seizures. Stearns father was shot and killed by Winfield police. While in town for the funeral, Stearns knocked on the door and/or rang the doorbell at Winfield Police Officer Greg Venable’s home for approximately thirty seconds just after midnight. When no one answered, Mr. Stearns walked back to his car and drove away. Later, officer Venable stopped him and quizzed him about why Stearns was knocking at his door. Stearns at one point said "you’re probably the mother fucker that shot my dad." Stearns eventually produced ID and was allowed to leave. When these incidents were relayed to the DA, he determined there was probable cause to arrest Stearns for disorderly conduct. A page issued telling officers to arrest Stearns. Stearns was arrested without a warrant, and strip-searched during booking even though he was not suspected of having a weapon or contraband, and was not expected to be put in the general population. From a group denied summary judgment, the circuit reversed as to only one backing officer who knew only of the page and no underlying facts regarding the arrest. Everyone else apparently knowingly violated the law, and the arresting officer was not entitled to rely on the prosecutor's erroneous determination there was probable cause to arrest Stearns.

Brooks v. Gaenzle, ___ F.3d ___ (10th Cir. No. 09-1489, filed 08/10/2010). Officers responded to a burglary in progress and were attempting to break down a door when someone shot through it at them. A black male, Brooks, fled the residence and did not heed officer's orders to stop, so they shot him but Brooks still did not stop. In an action claiming that defendant-officers violated plaintiff's Fourth Amendment right to be free from unreasonable seizure by use of excessive force when they shot him after he fled the scene of a violent crime, summary judgment for defendants is affirmed where: 1) the authorities did not gain "intentional acquisition of physical control" over plaintiff; 2) the mere use of physical force or show of authority alone, without termination of movement or submission, did not constitute a seizure; and 3) the officer's gunshot may have intentionally struck plaintiff, but it clearly did not terminate his movement or otherwise cause the government to have physical control over him.

Dodds v. Richardson, ___ F.3d ___ (10th Cir. No. 09-6157, filed 08/06/10). A former sheriff violated plaintiff's Fourteenth Amendment due process rights by depriving plaintiff of his protected liberty interest in posting bail without a legitimate excuse. In overdention cases, a plaintiff’s liberty interest in being freed from pretrial detention once his bail had been set may not be denied just because an official says it has been his practice to do so for a long time and the practice of his predecessors for an even longer time.

Thomas v. Durastanti, 607 F.3d 655, (10th Cir. 2010). In an action claiming that a BATF agent violated plaintiff's Fourth Amendment right to be free from unreasonable seizures when the agent shot plaintiff, the denial of summary judgment based on qualified immunity is reversed where a reasonable officer would have had probable cause to believe that there was a threat of serious physical harm to himself or others in the situation presented. ATF agents saw a Lincoln exiting a high-crime neighborhood near Wichita. They followed the vehicle and noticed it was speeding and had a dealer's tag. Dispatch advised the registration was not on file. A trooper joined the surveillance. As the Lincoln pulled into a gas station, the ATF agents pulled in front of the Lincoln and agents approached the Lincoln in plain clothes and with guns drawn. Meanwhile the trooper pulled in behind the Lincoln and turned on his emergency lights. Depending on which version of the facts you believe, the three suspects in the car did not know the ATF agents were police, and the occupants of the Lincoln thought they were being robbed. If you believe the police officer's story, both ATF agents and the trooper told the occupants to get back in the car and keep their hands where they could be seen. The occupants complied, but then started driving away, steering around the ATF agent's SUV. There were factual disputes about the speed of the Lincoln and the position of the officers, but the Court examined the trooper's video that recorded portions of this 37-second encounter. The video showed that the Lincoln was headed for agent Durstanti and in fact struck him, causing him to roll off its hood. Durstanti fired several rounds into the Lincoln about 1 second prior to being hit by the Lincoln and two rounds after rolling off the hood. The Circuit found the officer should be entitled to summary judgment because deadly force is reasonable when an officer is threatened by a weapon (including a car trying to run over the officer). The court found that based on the totality of the circumstances (sufficient reasonable suspicion to stop the car; close proximity to a vehicle deliberately trying to move out of the parking lot), the officer's actions were objectively reasonable, even if mistaken. "[I]t goes without saying that an officer in close quarters is no match for a two-ton vehicle."

Fletcher v. Burkhalter, ___ F.3d ___ (10th Cir. No. 09-7003, filed 05/24/10). The victim of a fraudulent land sale provided Deputy Burkhalter information showing that Jack Fletcher sold the victim land that Fletcher did not own. The victim identified Fletcher by reference to his post-office box in Eufala, Oklahoma; his cell-phone number; and the license-plate number, make, model, and color of his car. He also said Fletcher was either in his late 70s or 86. The victim included a hand-drawn map showing where Fletcher lived. One of the sale documents had the initials "JEF" by a modification of terms. Burkhalter ran Fletcher's name through the Department of Public Safety database and came up with two Jack Fletchers, one apparently residing in Eufala, and another in Oklahoma City. The Oklahoma City Jack Fletcher had a registered vehicle matching the description provided by the victim. Burkhalter included all the information he had in his incident report, and did nothing else to investigate the matter other than signing the probable cause affidavit forwarded to him by the DAs office. Eventually, an arrest warrant issued to Jack Wade Fletcher, the plaintiff (the opinon is not clear on which Jack Fletcher he is). The district court's denial of summary judgment based on qualified immunity is affirmed where: 1) the court lacked jurisdiction to consider defendant's argument that the district court erred in holding that there was sufficient evidence to support a finding of malice; and 2) the approvals of the district attorney and the judge did not absolve defendant of liability.

Lewis v. Tripp, ___ F.3d ___ (10th Cir. No. 09-6105, filed 05/17/10). Plaintiff, a chiropractor who had his license revoked, was suspected of continuing to engage in practice. Tripp, president of the Oklahoma Board of Chiropractic Examiners, had staff issue an administrative subpoena, seize patient records, and shut down the practice. Lewis sued, claiming various violations of his rights. The Circuit, one judge dissenting, found no evidence to suggest that Dr. Tripp was personally involved in the Fourth Amendment violation Dr. Lewis alleges, and directed summary judgment for Tripp.

Armijo v. Peterson, ___ F.3d ___ (10th Cir. No. 09-2114, filed 04/13/10). Las Cruces police received tips that bomb threats would be called in to Oñate High School. They also received information the threats would be called in by gang members, who planned to open fire on the students as they evacuated the school. The bomb threats were called in from disconnected cell phones. Police (wrongly) identified Christopher Armijo as the likely suspect. After locking down the school, they went to Armijo's house. They knocked, but did not get an answer. They found the door unlocked, so walked in, conducted a protective sweep, and then interviewed Christopher, who they found sleeping in bed. Once it became apparent he was not their suspect, they left. Armijo's mother sued, claiming officers violated the Fourth Amendment. The district court denied summary judgment based on qualified immunity. The Circuit reversed, finding the entry was based on exigent circumstances; an emergency existed; that the Terry detention of Armijo in his home was justified; and the Buie sweep of the home was justified based on the potential threat.

Zia Trust Company v. Montoya, ___ F.3d ___ (10th Cir. No. 09-2006, filed 03/0910). Montoya, a Dona Ana County deputy, shot and killed a man when responding to a domestic dispute. A man called police during a dispute with his adult son. Dispatchers informed the responding officer the suspect had mental issues and there were two firearms at the residence. Montoya pulled up right in front of the residence and got out of his car with his gun drawn. He did not identify himself nor say anything to anyone. It was dark outside. Montoya put himself generally in front of a van driven by the suspect about 15 feet away and at a 65-degree angle to the passenger side. Montoya claimed the tires were pointed at him, and when the driver raced the engine and the van lurched forward about a foot (despite being stuck on a retaining wall), Montoya shot the driver in the neck. Noting hotly disputed facts, the district court denied summary judgment based on qualified immunity. The Circuit affirmed, finding the alleged facts were sufficient to state a claim for excessive force. In doing so, the court considered whether officers ordered the susepct to drop his weapon and the suspect's compliance, whether hostile motions were made toward the officers with the weapon, the distance separating the officers and the suspect and the manifest intentions of the suspect. See Estate of Larsen ex rel. Sturdivan v. Muir, 511 F.3d 1255 (10th Circuit 2008).

Rhoten v. Dickson, 290 Kan. 92, 223 P.3d 786 (2010)(No. 98837, filed 01/29/10), affirming 40 Kan.App.2d 433, 192 P.3d 679 (2008). When discovery revealed that Bruce Dickson, who struck Danielle Rhoten's car was not aware a Topeka police officer was chasing him, the federal court dismissed Danielle Rhoten's civil rights complaint against The City of Topeka and Lieutenant Frank Pase, who was attempting to catch up, but was not pursuing Dickson. The federal judge found no causal connection between the police officer's acts and Rhoten's injury. After that ruling, the federal court declined to hear Rhoten's state negligence claims, and she filed a lawsuit against the City and the officer in Shawnee district court. The district court dismissed her suit on the basis of res judicata, sometimes called claim preclusion, and collateral estoppel, also known as issue preclusion. The Court of Appeals affirmed, finding that the lack of causation finding in the federal action bars a proceeding in a negligence action.

Weise v. Casper, ___ F.3d ___ (10th Cir. No. 09-1085, filed 01/27/10). In a Bivens action based on the exclusion of plaintiffs, by volunteers acting under government supervision, from a speech by then-President Bush, dismissal of the complaint based on qualified immunity is affirmed where plaintiffs failed to identify any First Amendment doctrine that prohibited the government from excluding them from an official speech on private property. Plaintiffs were asked to leave due to a bumper sticker on their car stating, "no more blood for oil."

Steed v. McPherson Area Solid Waste Utility, ___ Kan.App.2d ___, ___ P.3d ____ (No. 100,831, filed 01/08/10). A 12-105b claim served on a utilities accountant and personnel manager substantially complied with 12-105b because she was the de facto clerk and the board did not maintain offices at the utility. Because the plaintiffs prematurely filed their petition six days after filing their claim, it was a nullity. But an amended petition filed less than 60 days after the claim was deemed denied was timely and gave the district court subject matter jurisdiction over the proceeding.

Civil Commitment of Sex Offenders

United States v. Comstock, 556 U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 08-1224, filed 05/17/10). Federal law allows a district court to order the civil commitment of a mentally ill, sexually dangerous federal prisoner beyond the date he would otherwise be released. 18 U. S. C. § 4248. The Government instituted civil-commitment proceedings under § 4248 against respondents, each of whom moved to dismiss on the ground, inter alia, that, in enacting the statute, Congress exceeded its powers under the Necessary and Proper Clause, U. S. Const., Art. I, §8, cl. 18. Agreeing, the District Court granted dismissal, and the Fourth Circuit affirmed on the legislative-power ground. The Unites States Supreme Court reversed, holding the Necessary and Proper Clause grants Congress authority sufficient to enact § 4248. The court cited five considerations: (1) the breadth of the Necessary and Proper Clause, (2) the long history of federal involvement in this arena, (3) the sound reasons for the statute’s enactment in light of the Government’s custodial interest in safeguarding the public from dangers posed by those in federal custody, (4) the statute’s accommodation of state interests, and (5) the statute’s narrow scope.

Counsel, Ineffective

State v. Sarabia-Flores, ___ Kan.App.2d ___, ___ P.3d ____ (No. 10662, filed 05/10/13). The holding in Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010), that the Sixth Amendment to the United States Constitution requires defense counsel to advise a defendant about the risk of deportation arising from a guilty plea does not apply retroactively to a defendant whose conviction became final before Padilla was decided.

Padilla v. Kentucky, 556 U.S. ___, 130 S.Ct. 1473, ___ L.Ed.3d ___ (No. 08-651, filed 03/31/10). In 2002, Jose Padilla, a Legal Permanent Resident of the United States, pleaded guilty to a Kentucky drug trafficking offense. Padilla claims he pled guilty in reliance on his defense counsel's advice that he did not have to worry about deportation as a consequence of his plea. In fact, under federal law, drug trafficking is a deportable offense. Padilla claimed that under the Sixth Amendment, he was denied effective assistance of counsel because his defense counsel failed to advise him as to the possible immigration consequences of his plea, and in fact misadvised him. The Commonwealth of Kentucky contended that Padilla was not denied effective assistance of counsel, because the Sixth Amendment does not require that defense counsel advise clients of collateral consequences, and immigration consequences are collateral consequences of guilty pleas. The Supreme Court disagreed, and held that Padilla made a prima-facie showing of ineffective assistance satisfying the first prong of Strickland. The court remanded for a hearing on how Padilla was prejudiced by the bad advice.

Discovery

State v. Gonzales, 290 Kan. 747, 234 P.3d 1 (2010). "[D]istrict courts have the authority, independent of a statutory privilege, to prevent or limit the power of compulsory process when necessary to prevent abuse, harassment, undue burden or expense, to manage litigation, to prevent violation of constitutionally protected interests, and to protect confidential matters. Without exception, our statutes and case law recognize the district court's necessary authority to prevent or limit the power to compel disclosure of information in virtually every aspect of the civil and criminal litigation process."

Disability Benefits

Medina v. Board of Trustees of Police & Fire Retirement Board of City of Wichita, Kansas, ___ Kan.App.2d ___, ___ P.3d ____ (No. 102097, filed 05/21/10. Plaintiff was a city police officer. The officer responded to an unattended child call and twisted his right knee while getting out of his patrol car. Later, at home, his right knee buckled and he fell, injuring his ankle. Plaintiff received workers compensation benefits for his injuries. Plaintiff then sought disability retirement benefits from the city through a Board of Trustees. The Board of Trustees denied plaintiff's application for benefits because his initial injury, the twisted knee, was not directly attributable to the performance of an act of duty. The Board reasoned that plaintiff twisted his knee when he got out of the car, an action common to all and not unique to a police officer. The plaintiff's ankle injury occurred when his knee buckled and he was not on duty. The Board concluded that plaintiff's injuries were not a service-connected disability and he was not entitled to benefits. The district court affirmed the decision of the Board. On appeal, the officer argued that he need only prove he was permanently injured while engaged in the performance of any work duties. The Kansas Court of Appeals pointed out that the City ordinance required a service-connected injury suffered during performance of occupational duties which "inherently involving special risks not generally assumed by a citizen in the ordinary walks of life." Because stepping out of a patrol car did not involve special risks in this instance, the court affirmed judgment for the Board.

DL Suspension

Henke v. Kansas Department of Revenue, ___ Kan.App.2d ___, ___ P.3d ____ (No. 102846, filed 09/17/10). Pursuant to K.S.A. 2008 Supp. 8-1020(h)(3)(F), an individual holding a driver's license who challenges an officer's certification of a blood test failure may raise issues concerning whether the blood sample was collected in a reliable way. Such issues would include whether the person who drew the blood sample from the individual holding the driver's license was qualified to do so under K.S.A. 2008 Supp. 8-1001(c). But the district court did not err in holding that Henke failed to meet his burden of proof to show that the person collecting the blood was unqualified.

Shirley v. Kansas Department of Revenue, ___ Kan.App.2d ___, ___ P.3d ____ (No.103317, filed 12/10/10). Operation of a minitruck while intoxicated was sufficent to suspend the defendant's driver's license. A minitruck, is a vehicle weighing 1,400 pounds and having a 3- or 4-cylinder, 650 cc., 45-horsepower motor, which is 52 inches wide, has a 4-speed transmission, and will run about 60 miles per hour. That constitutes a vehicle as defined by K.S.A. 2006 Supp. 8-1485.

Smith v. Kansas Department of Revenue, ___ Kan. ___, ___ P.3d ___ (No. 101744, filed 11/19/10). A trooper stopped Smith because his trailer lights were not working. He noticed an odor associated with an alcoholic beverage coming from Smith and asked him whether he had been drinking. Smith replied he had drank "a few." A DUI investigation ensued, and Smith's drivers license was suspended for a year. Smith argued that the trooper should have Mirandized him before asking incriminating questions. The Supreme Court affirmed the suspension, finding that Miranda does not apply to traffic stops. It also upheld K.S.A. 8-1012 against a constitutional challenge that probable cause, not reasonable suspicion should be required.

McIntosh v. Kansas Department of Revenue, ___ Kan. ___, ___ P.3d ___ (No. 101878, filed 08/20/10). Rescission of a prior refusal to take a breath test must occur (1) within a very short and reasonable time after the prior first refusal; (2) when a test administered upon the subsequent consent would still be accurate; (3) when testing equipment is still readily available; (4) when honoring the request will result in no substantial inconvenience or expense to the police; and (5) when the individual requesting the test has been in the custody of the arresting officer and under observation for the whole time since arrest. The court in this case found a valid rescission on the following facts: An officer arrested McIntosh and took him to the law enforcement center. Jail staff patted McIntosh down, then the officer gave the implied consent advisories and McIntosh refused. McIntosh was taken to another room while the officer completed paperwork for 20-30 minutes. The officer then served the DC-27 form noting a refusal. McIntosh then rescinded his refusal. The Court held he should have been allowed to take the breath test.

Poteet v. Kansas Department of Revenue, ___ Kan.App.2d ___, 233 P.3d 286 (No. 101986 filed 01/15/10). A trooper was called to an accident scene and saw a vehicle on its side. It appeared the vehicle had driven through a barb-wire fence and across a field before it rolled. EMS personnel said the driver had an odor of alcohol coming from her. Even though the trooper never made contact with the driver, he had reasonable grounds to suspect she was operating under the influence and to order a blood test. The district court read City of Hutchinson v. Davenport, 30 Kan. App. 2d 1097, 1101, 54 P.3d 532 (2002)(odor of alcohol by itself is not enough) too narrowly, and disregarded the facts of the accident, which certainly suggested an impaired driver.

Byrd v. Kansas Department of Revenue, 43 Kan.App.2d 145, 221 P.3d 1168 (No. 101,189, filed 01/15/10), affirmed ___ Kan. ___ (101189, filed 10/26/12). Byrd provided a blood sample that tested at 0.28. Upon receipt of the results, Atchison County Deputy Clark executed the DC-27 form and gave it to an administrative assistant, Hale, who mailed it to Byrd. Byrd argued to the district court that Clark had to mail the notice himself to comply with K.S.A. 8-1002(c). The district court agreed. The Court of Appeals reversed, finding substantial compliance with the service statue based on the 1993 amendment to K.S.A. 8-1001(v) ("this act is remedial law and shall be liberally construed to promote public health, safety and welfare.") The Court of Appeals held the 1993 legislative amendment meant that Anderson v. Kansas Dept. of Revenue, 18 Kan.App.2d 347, 355, 853 P.3d 69, rev. denied 253 Kan. 856 (1993)(strict compliance with personal service statute K.S.A. 8-1002(c) required), was no longer good law.

Due Process

In re J.O., ___ Kan.App.2d ___, ___ P.3d ____ (No. 103481, filed 05/06/10). Father in a termination of parental rights case was incarcerated in Colorado at the time of the hearing and requested to appear and testify by telephone. Shawnee County Judge Mitchell denied the request and terminated his rights. The Court of Appeals reversed, holding that denial of the request to testify by telephone violated the father's due process rights. "We hold the district court's strict application of Rule 145 and K.S.A. 60-243(c) to prohibit telephonic participation under these circumstances violates constitutional due process requirements. The integrity of the judicial process obviously must include incorporation of some flexibility in the mode of appearance at a trial on the merits for good cause in compelling circumstances, as recognized in FRCP 43(a). Where the only manner of appearance for an incarcerated person to participate in a proceeding to protect a fundamental liberty interest is by telephone, neither the rule nor the statute should prohibit that modicum of due process."

DUI

State v. Duncan, ___ Kan.App.2d ___, ___ P.3d ____ (No. 102356, filed 11/19/10). A Sedwick County deputy saw Duncan driving without headlights and stopped him. Duncan turned out to be intoxicated and was convicted after a bench trial. The Court of Appeals held there was sufficient evidence to convict Duncan, but reversed the conviction because Duncan was denied his right to a jury trial. There was nothing in the record to show the Court advised Duncan of his right to jury trial, and nothing to show that Duncan waived that right.

State v. Bishop, ___ Kan.App.2d ___, ___ P.3d ____ (2010 WL 3928911 (10/08/10). A diversion agreement entered into by a minor to avoid prosecution on a driving under the influence (DUI) charge counts against that person as a prior offense in a criminal proceeding on a subsequent DUI charge the same as if the person had been an adult at the time of entering into the agreement. Minors with driving privileges are subject to the same punishments as adult drivers when they commit traffic offenses. The diversion agreements are silent as to any age requirement.

State v. Shadden, ___ Kan. ___, ___ P.3d ___ (No. 97457, filed 07/09/10), reversing 40 Kan. App. 2d 1103, 199 P.3d 167 (2009). On December 27, 2005, Richard Shadden unfortunately drove poorly while in view of two Merriam, Kansas police officers. Shadden was stopped and was subjected to field sobriety tests. At least one of the tests (walk and turn) has standards promulgated by the National Highway Traffic Safety Administration (NHTSA). NHTSA's standards currently train officers to look for eight possible clues of intoxication based upon a field sobriety test(s). In the walk and turn, Shadden did not do well. At trial, the investigating officer testified to the officer's observations of Shadden's driving, and to the field sobriety tests. However, the officer went a little further, and that is the point of this appellate case: the officer's testimony "went beyond an indication that Shadden attempted to perform certain field sobriety tests and demonstrated multiple clues of intoxication. … [instead, the officer] also testified that according to NHTSA standards, a driver who exhibits two clues of intoxication during the walk-and-turn test has a 68% likelihood of having at least a .10 BAC." The Court of Appeals panel did not like those last few words. It held that the officer was not qualified to testify about percentages and the reliability of the NHTSA standards, and that the State had failed to put on any expert testimony to qualify the NHTSA standards as scientifically reliable. The Kansas Supreme Court agreed that the officer should not have been allowed to testify that a person exhibiting two clues of intoxication during the walk-and-turn test has a 68% likelihood of having at least a .10 BAC," but reversed the Court of Appeals on its conclusion that officers should not be allowed to use words like "tests," "pass," "fail," or "points" when referring to SFTs performance on a NHTSA test, because such words are commonly used by lay and expert witnesses to describe evidence that is not scientific in nature. Thus, the officer's testimony should have been admitted.

State v. Doyle 2010 WL 744796 (02/26/10)(unpublished). Defendant committed at least eight traffic infractions while fleeing from the police. He was physically removed from the vehicle. Officers noted: odor of alcohol, poor balance, admitted to drinking. The defendant was arrested. While at the station he refused to perform SFSTs and refused the evidentiary breath test. The officer testified he felt the defendant could not safely operate a vehicle. During closing arguments the defendant claimed he did not perform the SFSTs cause he was already under arrest. The State countered with "He refused to show that he wasn't under the influence" During appeal the defendant claimed the officer could not express his opinion. The court cited State v. Kendall, 274 Kan. 1003 (2002) and City of Dodge City v. Hadley, 262 Kan. 234 (1997) in stating that an officer's opinion as either expert or lay opinion matters little since either type of testimony is acceptable. The defendant also claimed burden shifting during closing argument. Citing 16 Kan.App.2d 585 (1992) a defendant's refusal to submit to field sobriety testing is admissible for purposes of proving DUI. Lastly felony flee and elude is NOT a multiple acts case and the jury does not have to be unanimous on the traffic infractions only that he committed 5 of them.

State v. Germann 2010 WL 481268 (02/05/10)(unpublished). During jury trial the officer indicated Germann was under the influence of alcohol to the extent he was not capable of driving safely. He was found guilty. Germann appeals claiming the officer commented on the ultimate issue for the jury and this was improper. In State v. Kendall, 274 Kan. 1003 (2002) the Supreme Court held the officer did not opine the defendant was guilty of the crime and that was admissible. It was irrelevant whether the evidence was characterized as expert or lay testimony because either type of testimony is acceptable. Court also noted City of Dodge City v. Hadley, 262 Kan 234 (1997).

State v. Weilert, ___ Kan.App.2d ___, ___ P.3d ____ (No. 102917, filed 03/085/10). Weilert crashed his motorcycle. Troopers suspected he had been drinking, and after a PBT confirmed he had, Weilert admitted drinking. Upon arrival at the courthouse, Weilert asked for medical treatment of his hands. The trooper took him to a hospital and read him an implied consent advisory. Weilert refused testing, but consented to withdrawal of blood for medical purposes. A trooper also overhead Weilert that he had six hard-liquor drinks before the accident. The state subpoenaed the blood results. The district court suppressed the results and Weilert's statement to the doctor, reasoning that a HIPAA requires privacy and the DUI case exception to physician-patient privilege in K.S.A. 60-427(b) was unconstitutional. The Court of Appeals reversed. It reasoned the statute was entitled to a presumption of validity, and even if a HIPAA violation occurred, it did not require application of the exclusionary rule.

Employment & Discipline

Bautista v. Los Angeles County, 10 S.O.S. 6749 (Profiled in Police Magazine 12/07/10). The Los Angeles County Sheriff's Department did not violate a deputy's First Amendment rights, when the agency fired him for maintaining a personal relationship with a known prostitute and heroin user, a district appellate court has ruled. Deputy Emir Bautista was terminated in 2004, after his relationship with Shawn Crook became known to the department. Bautista had not reported the relationship to his superiors, reports the Metropolitan News-Enterprise. Department policy requires officers to seek permission before associating with anyone under criminal investigation or indictment, or "who have an open and notorious reputation in the community for criminal activity, where such association would be detrimental to the image of the Department." Bautista sued in 2006 to reverse a decision of the Los Angeles County Civil Service Commission approving his discharge. Los Angeles Superior Court Judge Dzintra Janavs, since retired, denied the request, reasoning that the prohibited-association policy was rationally related to a legitimate purpose and therefore constitutional. On appeal, Bautista argued that Janavs should have applied heightened scrutiny to the policy because it infringed his fundamental right of marriage and similar intimate association, but Perluss said rational basis review was appropriate where the policy only "incidentally" affected those rights. The justice conceded that Bautista’s involvement with Crook was "admirable" insofar as it encouraged her to abandon prostitution and recover from heroin addiction. However, he wrote, crediting Martinez’s testimony about the effect of Bautista’s relationship on the department, the decision "was not without costs." Perluss also rebuffed Bautista’s argument that the penalty was excessive, pointing out that the department’s disciplinary guidelines expressly mentioned discharge as the appropriate punishment.

Evidence

United States v. Pablo, ___ F.3d ___ (10th Cir. No. 09-2091, filed 11/16/2010). Where an expert witness (on DNA) discloses otherwise inadmissible out-of-court testimonial statements on which she based her opinion (lab analysis showing DNA belonged to defendant), the admission of those testimonial statements under Rule 703 typically will not implicate a defendant’s confrontation rights because the statements are not admitted for their substantive truth. Also, merely warning potential witnesses that their statements may be used against them is an ethical duty required of a prosecutor and did not deprive defendant of the right to present a defense.

United States v. Hood, ___ F.3d ___ (10th Cir. No. 09-4156, filed 08/17/10). Drug evidence was accidentally released to the K-9 unit, but returned when they were notified it was needed for trial. There was no bad faith destruction, just a good-faith belief the case was over. The Circuit rejected Hood's argument that destruction of the evidence denied him due process. "[U]nless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law." [United States v.] Youngblood, 488 U.S. [51], 58; accord Snow v. Sirmons, 474 F.3d 693, 716 (10th Cir. 2007).

State v. Johnson, ___ Kan.App.2d ___, ___ P.3d ____ (No. 100864, filed 05/28/2010). Johnson was stopped in a checklane at approximately 1:25 a.m. and showed signs of intoxication. Where testimony establishes that an officer's field notes were destroyed after the information contained therein was fully and accurately transcribed into a narrative report, there is no due process violation unless it is shown that the officer exhibited bad faith in his or her actions. "In cases where the State fails to preserve potentially useful evidence, there is no due process violation unless the defendant shows bad faith on the part of the State. Arizona v. Youngblood, 488 U.S. 51, 58, 102 L. Ed. 2d 281, 109 S. Ct. 333 (1988); Taylor v. State, 251 Kan. 272, 278, 834 P.2d 1325 (1992)[, disapproved on other grounds State v. Rice, 261 Kan. 567, 932 P.2d 981 (1997)]." State v. LaMae, 268 Kan. 544, 550, 998 P.2d 106 (2000). The question of whether the State acted in bad faith is a question of fact. 268 Kan. at 551. On appeal, this court reviews the district court's findings of fact to determine if they are supported by substantial competent evidence. Also, this court reviews the findings to determine if they are sufficient to support the district court's conclusions of law. State v. Finley, 273 Kan. 237, 241, 42 P.3d 723 (2002). The Court also rejected his arguments that a breath sample needed to be preserved; that one test was constitutionally inadequate, that all thermometers used in the Intox 5000 simulator needed to be certified; and that the actual people performing the necessary certifications needed to be present to testify.

State v. Dukes,, 290 Kan. 485, 231 P.3d 558 (2010), affirming State v. Dukes, 38 Kan.App.2d 958, 174 P.3d 914 (2008).

Briscoe v. Virginia, 556 U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 07-11191, 01/25/10). "We vacate the judgment of the Supreme Court of Virginia and remand the case for further proceedings not inconsistent with the opinion in Melendez-Diaz v. Massachusetts, 557 U. S. 305 (2009)." This case involved how a state could comply with the Confrontation Clause when presenting certificates of forensic analysis into evidence, rather than having the forensic analyst testify to the results of the evidence testing. In June 2009, the Supreme Court held in Melendez-Diaz v. Massachusetts that certificates of analysis must be accompanied by an opportunity to cross-examine the forensic analyst who prepared the report. However, Virginia Code Sections 19.2-187 and 19.2-187.1 allowed for a defendant to question a forensic analyst at trial by calling him as a defense witness. Petitioners Mark Briscoe and Sheldon Cypress argued that this violates Melendez-Diaz and the Confrontation Clause by shifting the burden to the defendant and creating a waiver of a constitutional right through inaction. Virginia claims that the scheme is constitutional because the defendants are on notice of the charges against them and may still call the forensic analyst as a witness themselves.

Firearms

State v. Knight, 42 Kan.App.2d 893, 218 P.3d 1177 (No. 100167, filed 11/06/09, modified after remand 10/08/10). A trooper saw Knight's car on I-35 at around 11:24 p.m. cross the solid line on the left side and weave within its own lane. The trooper believed that the driver might be under the influence of drugs and/or alcohol and stopped the car. The Court of Appeals agreed the state failed to present adequate proof of a public safety stop, but held that observation of Knight's car weaving in and out of lanes without signaling and his car's weaving within its proper lane of travel, standing alone, created sufficient reasonable suspicion for the stop. The case also rejects Knight's argument that the prohibition on concealed carry violates the 2d Amendment under McDonald v. Chicago, 561 U.S. ___, 130 S.Ct. 3020 (2010) and District of Columbia v. Heller, 554 U.S. 570, 171 L.Ed.2d 637, 128 S.Ct. 2783 (2008).

State v. Franklin, ___ Kan.App.2d ___, ___ P.3d ____ (No. 102195, filed 07/02/10). Defendant committed two different burglaries using a BB pistol. He was convicted of aggravated robbery and ordered to register as a violent offender. Franklin argues the BB pistol was not a deadly weapon, and that an objective test should apply. The Court rejected his argument, finding the subjective test for "dangerous weapon" from State v. Childers, 16 Kan.App2d 605, 830 P.2d 50 (1991), rev. denied 250 Kan. 806 (1992), should govern. It also rejected his Apprendi challenge.

McDonald v. Chicago, 556 U.S. ___, 130 S.Ct. 3020, ___ L.Ed.3d ___ (No. 08-1521, filed 06/28/10). The Second Amendment right to keep and bear arms is incorporated as against the States by the Fourteenth Amendment's Privileges or Immunities or Due Process Clauses. However, the Court repeats from Heller it's passage about the right not being unlimited, and possession of guns by felons and mentally ill persons can be prohibited, as well as carrying into sensitive government buildings. 130 S.Ct. at 3047.

Johnson v. United States, 556 U.S. ___, 130 S.Ct. 1265, ___ L.Ed.3d ___ (No. 08-6925, filed 03/02/10). Curtis Darnell Johnson was convicted of possession of ammunition by a convicted felon. Because he had been previously convicted of three felonies, one of which was a battery involving possible touching of another person, the prosecution sought to sentence him under the Armed Career Criminal Act ("ACCA"). The ACCA is a federal law that imposes a minimum sentence of fifteen years in prison on criminals who have at least three violent felony convictions. Johnson appealed his sentence, claiming that a battery potentially caused by touching another person did not meet the physical force requirement of the ACCA to be considered a violent felony. The Supreme Court agreed. It held that the Florida battery conviction for "actually and intentionally touching" someone did not have, as an element, the use of physical force against the person of another as required by 18 U.S.C. § 924(e)(2)(B)(I). The crime was originally a misdemeanor battery, but was enhanced to a felony because of Johnson's record. The Court was not convinced that intentional touching was a violent felony as that term is used in 18 U.S.C. 924(e)(2)(B).

First Amendment

Minnesota v. Crawley, 789 N.W.2d 899 (Minn. Ct. of App. 2010). Statute that criminalized knowingly making false statements that allege police misconduct, but did not criminalize knowingly making false statements to absolve police of wrongdoing, violated the First Amendment's prohibition against viewpoint discrimination; and statute did not fall within exceptions to prohibition against viewpoint or content discrimination within proscribable categories of speech. Crawleyr filed a complaint on a Winona officer claiming the officer forged her signature on a medical release to obtain her medical records. During the investigation, a nurse said she saw Crawley sign the release. Crawley was charged and convicted of making a false statement regarding police misconduct, but the Court held the statute unconstitutional.

United States v. Stevens, 556 U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 08-769, filed 04/20/10). Defendant was convicted of distribution of depictions of unlawful animal torture in violation of 18 U.S.C. 48 for selling Pit Bull fighting videos. The Third Circuit held the statute violates the First Amendment. The U.S. Supreme Court agreed.

Interrogation

Berghuis v. Thompkins, 560 U.S. 370 (2010). The Unites States Supreme Court held that an accused must unambiguously invoke the right to remain silent. Silence is not sufficient nor is an ambiguous invocation.

United States v. Smith, ___ F.3d ___ (10th Cir. No. 09-2040, filed 06/03/10). Smith and a female companion got drunk and did some drugs at a party on the Navajo reservation in New Mexico. After the female passed out, she awoke to find Smith having sex with her. Smith was convicted of rape and appeals, contending the district court should have suppressed his confession because (a) it was not made knowingly and voluntarily, and (b) he was not promptly taken before a federal magistrate judge. Second, he asserts that the district court improperly allowed Jane Doe’s statement to the neighbor—"Help me, help me. He raped me."—to be admitted under the excited-utterance exception to the hearsay rule. Third, he challenges the district court’s conclusion that evidence sufficient to sustain his conviction was presented at trial. Finally, Smith seeks reversal of the special conditions of supervised release relating to children and disabled adults that the district court imposed. The Circuit rejected all his arguments, finding the confession was voluntary. At the time Smith waived his constitutional rights, it had been eight and a half hours since he had last been seen drinking, he did not appear intoxicated to the interviewers, he did not smell of alcohol, he stated that he was sober when asked, and he provided clear responses to a substantial number of questions. Doe's statement was properly admitted as an excited utterance, there was sufficient evidence and the release conditions were reasonable.

Berghuis v. Thompkins, 556 U.S. ___, 130 S.Ct. 1382, ___ L.Ed.3d ___ (No. 08-1470, filed 06/01/10). Police picked up Van Chester Thompkins in Ohio for murder and attempted murder. After taking him into custody, the officers read him Miranda warnings and asked whether he understood them. He indicated that he did. He did not, however, either invoke his rights (by saying, for example, "I don't want to answer any questions" or "I want a lawyer") or explicitly waive them (by expressing an affirmative desire or willingness to answer questions). The police then began to interrogate Thompkins about the suspected murder, and he responded with short verbal and nonverbal answers and without much elaboration. About 2 hours and 45 minutes into the interrogation a detective asked whether Thompkins prayed to God for forgiveness for "shooting that boy down" – Thompkins teared up and responded "Yes." The government later offered into evidence this affirmative response, an apparent confession, at Thompkins's trial, which ended in convictions for murder, attempted murder, and firearm offenses. Thompkins unsuccessfully appealed his convictions in the Michigan courts and then brought a petition for habeas corpus in federal court. The district court denied the petition, but the U.S. Court of Appeals for the Sixth Circuit reversed, finding that Thompkins's statement to police should have been suppressed, because he had not waived his Miranda rights. The United States Supreme Court reversed, holding the state court’s decision rejecting Thompkins’ Miranda claim was correct under de novo review and therefore necessarily reasonable under AEDPA’s more deferential standard of review. It reasoned that Thompkins’ silence during the interrogation did not invoke his right to remain silent because it was equivocal, and Thompkins waived his right to remain silent when he knowingly and voluntarily made a statement to police.

United States v. Cook, ___ F.3d ___ (10th Cir. No. 08-2297, filed 04/05/10). Cook and two of his cellmates at the Doña Ana County Detention Center killed an inmate named Gantz. Local sheriff's officers investigated, and Cook invoked his right to remain silent and to contact an attorney in a March 2005 interview. Later the FBI took over the investigation. They did not know about Cook's March 2005 invocation. In June 2005, they placed a cooperating informant facing a lengthy federal sentence in Cook's cell. Cook confessed his involvement in Gantz's death to the informant, who was wired and recorded the confession. Cook moved to suppress, contending a violation of Miranda and Edwards. The district court suppressed the confession. The Circuit reversed. It held that questioning by a fellow inmate did not constitute custodial interrogation requiring Miranda warnings. Miranda only applies to incommunicado interrogation of individuals in a police-dominated atmosphere. It held that Edwards and Mosley did not apply since Cook did not know he was speaking with a government agent and thus there was no custodial interrogation.

State v. Cluck, ___ Kan.App.2d ___, ___ P.3d ____ (No. 101347, filed 04/08/10). Cluck wrecked his car while drunk, killing three people. The day after the accident, he voluntary went to an interview room at the jail and gave an interview, implicating himself. Cluck claims he was subjected to custodial interrogation without benefit of Miranda warnings because the investigator considered him the only suspect and the interview took place at the jail. The court rejected this claim, noting that Cluck voluntarily appeared at the jail and his statement was voluntary. The court did find that the sentencing court overstepped its bounds by ordering Cluck to post the victims' pictures in his jail cell.

Maryland v. Shatzer, 556 U.S. ___, 130 S.Ct. 1213, ___ L.Ed.3d ___ (No. 08-680, filed 02/24/10). In 2003, Michael Shatzer ("Shatzer"), an inmate at the Maryland Correctional Institution, invoked his Miranda rights, refusing to speak about alleged sexual child abuse without an attorney present. The investigation into Shatzer's alleged sexual child abuse was closed later that year. In 2006, upon further evidence, the police opened a new investigation on the same matter and re-interrogated Shatzer, who had remained incarcerated for an unrelated offense during the entire interval. Shatzer waived his Miranda rights and made certain admissions. At trial, Shatzer moved to suppress the statements he made in 2006, arguing that the police's re-interrogation violated the Supreme Court's decision in Edwards v. Arizona, which held that, once a suspect requests counsel, the police and/or prosecutor may not subject that suspect to further interrogations until counsel is made available. The United States Supreme Court held that because Shatzer experienced a break in Miranda custody lasting more than two weeks between the first and second attempts at interrogation, Edwards does not mandate suppression of his 2006 statements. In doing so, the Court noted the importance of voluntary confessions. The Court stated, "[v]oluntary confessions are not merely a proper element in law enforcement, they are an unmitigated good, essential to society's compelling interest in finding, convicting and punishing those who violate the law." Maryland v. Shatzer, web slip opinion at 5-6 (internal citations and quotation marks omitted).

Florida v. Powell, 556 U.S. ___, 130 S.Ct. 1195, ___ L.Ed.3d ___ (No. 08-1175, filed 02/23/10). Kevin Dwayne Powell was convicted of being a felon in possession of a firearm. When he was arrested, police gave Powell his Miranda warnings, including telling him he had a right to a lawyer before questioning. Powell's lawyers objected, saying police did not tell him he had a right to have a lawyer during his police interrogation. The Florida Supreme Court overturned the conviction, saying the police's Miranda warning was insufficient. The Supreme Court reversed. It held that warnings informing Powell that he had "the right to talk to a lawyer before answering any of [their] questions" and "the right to use any of [his] rights at any time [he] want[ed] during th[e] interview," were sufficient. The first statement communicated that Powell could consult with a lawyer before answering any particular question, and the second statement confirmed that he could exercise that right while the interrogation was underway. In combination, the two warnings reasonably conveyed Powell’s right to have an attorney present, not only at the outset of interrogation, but at all times.

Jury Instructions

State v. Richardson, ___ Kan. ___, ___ P.3d ___ (No. 98,572, filed 02/19/10). In a prosecution for felony eluding, the district court erred by failing to provide instructions on the five underlying moving violations and the definition of moving violations. While the instruction given closely tracked PIK Crim 70.09, what constitutes a moving violation is not a simple matter of common knowledge among jurors.

Juveniles

In the Matter of P.R.G., ___ Kan.App.2d ___, ___ P.3d ____ (No. 104025, filed 12/10/10). The common-law rule given to us in In re Clyne, 52 Kan. 441, 35 Pac. 23 (1893), that a warrant needs to be timely served is applicable in proceedings under the KJJC. Failure to timely serve a warrant means that late prosecution violates the statute of limitations.

Graham v. Florida, 556 U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 08-7412, filed 5/17/10. Graham was 16 when he committed armed burglary and another crime. Under a plea agreement, the Florida trial court sentenced Graham to probation and withheld adjudication of guilt. Subsequently, the trial court found that Graham had violated the terms of his probation by committing additional crimes (less than 6 months after being put on probation, he was arrested for two armed robberies, criminal restraint and felony fleeing and eluding). The trial court adjudicated Graham guilty of the earlier charges, revoked his probation, and sentenced him to life in prison for the burglary. Because Florida has abolished its parole system, the life sentence left Graham no possibility of release except executive clemency. The Supreme Court struck down defendant's life sentence holding that it violated the Eighth Amendment's Cruel and Unusual Punishment Clause, which does not permit a juvenile offender to be sentenced to life in prison without parole for a nonhomicide crime.

In re D.E.R., ___ Kan. ___, ___ P.3d ___ (No. 101877, filed 03/19/10). Juvenile respondents charged with a felony do not have a right to an adversarial preliminary hearing pursuant to K.S.A. 22-2902. They do, however, have a Fourth Amendment right to have a judicial determination of probable cause as a prerequisite to an extended restraint of liberty.

Miscellanous

Virginia v. Sebilius, ___ F.Supp.2d ___ (U.S.D.C. Va, No. 3:10CV188-HEH, filed 12/13/10). Minimum essential coverage provision of Obamacare violates the constitution because it exceeds Congress's power under the commerce clause.

Jerman v. Carlisle, 556 U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 08-1200, filed 04/21/10). "We have long recognized the "common maxim, familiar to all minds, that ignorance of the law will not excuse any person, either civilly or criminally." Barlow v. United States , 7 Pet. 404, 411 (1833) (opinion for the Court by Story, J.); see also Cheek v. United States , 498 U. S. 192, 199 (1991) ("The general rule that ignorance of the law or a mistake of law is no defense to criminal prosecution is deeply rooted in the American legal system")."

Offender Registration

Carr v. United States, 556 U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 08-1301, filed 06/01/10). The Sex Offender Registration and Notification Act ("SORNA") requires convicted sex offenders to register in any jurisdiction in which the offender resides and imposes criminal penalties on any sex offenders who travel in interstate commerce and knowingly fail to register. Before SORNA was enacted, Thomas Carr, a convicted sex offender, moved to Indiana but failed to register. A federal grand jury indicted Carr for his failure to register under SORNA. Carr appealed to the U.S. Circuit Court of Appeals for the Seventh Circuit, arguing that applying SORNA violated the ex post facto clause as his conviction and travel predated SORNA. The Seventh Circuit held that SORNA did not violate the ex post fact clause because the failure to register occurred after SORNA was enacted. The Supreme Court's reversed, agreeing with Carr's interpretation that the statute does not impose liability unless a person, after becoming subject to SORNA's registration requirements, travels across state lines and then fails to register. That interpretation better accords with §2250(a)'s text, the first element of which can only be satisfied when a person "is required to register under SORNA." §2250(a)(1). That §2250 sets forth the travel requirement in the present tense ("travels") rather than in the past or present perfect ("traveled" or "has traveled") reinforces this conclusion.

RICO Claims

Hemi Group L.L.C. v. City of New York, 556 U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 08-969, filed 01/25/10). Hemi Group, based in New Mexico, sold cigarettes online to New York residents but did not collect taxes for possession of cigarettes. The Jenkins Act, 15 U. S. C. §§375-378, requires out-of-state sellers to submit customer information to the States into which they ship cigarettes. The City alleged that Hemi's failure to file the Jenkins Act reports with the State constituted mail and wire fraud, which are defined as "racketeering activit[ies]," 18 U. S. C. §1961(1), subject to enforcement under civil RICO, §1964(c). The District Court dismissed the claims, but the Second Circuit vacated the judgment and remanded.. The United States Supreme Court reversed, concluding that because the City cannot show that it lost tax revenue "by reason of" the alleged RICO violation, it cannot state a RICO claim. A RICO plaintiff must show that a predicate offense "not only was a 'but for' cause of his injury, but was the proximate cause as well." Proximate cause for RICO purposes should be evaluated in light of its common-law foundations; it thus requires "some direct relation between the injury asserted and the injurious conduct alleged." A link that is "too remote," "purely contingent," or "indirec[t]" is insufficient. The city's alleged causation was "purely contingent" and "too remote" to satisfy' the RICO proximate cause standard.

Search and Seizure

State v. Williams, 222 P.3d 564, 2010 WL 348286 (2010 Kan.App., unpublished). KCK police saw a pedestrian walking at 2243 Quindaro, a high crime area known for drug activity, at 2:25 a.m.. Officers decided to do a "pedestrian check." and pulled to the side of road, activating their back-facing yellow wig wags. Two to four minutes into the encounter, they asked Williams for ID, which he produced. Officers ran him and found a warrant. They found drugs on his person in the search incident to arrest. The trial court suppressed the evidence holding that asking for ID and running a warrants check exceeded the scope of the officer's authority. The state took an interlocutory appeal and the Court of Appeals reversed, finding the encounter was voluntary. Judge Standridge dissented, reasoning that would she would find the encounter was a seizure from the outset, as opposed to the district court's finding that the encounter escalated into a seizure when the officer asked Williams for identification. Additionally, she stated:

Here, the officers decided to stop a pedestrian suspected of absolutely no wrongdoing solely for the purpose of asking for identification and running a check to see if the pedestrian had any outstanding warrants. I find this conduct to be conspicuously offensive and obviously inconsistent with "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures."

State v. Riess, 45 Kan. App. 2d 85, 244 P.3d 693 (2010) (No. 102071, filed 12/17/10). A person inadvertently stopped is seized within the meaning of the Fourth Amendment, but doing so was reasonable in this case based on officer safety considerations. The officer didn't intend to pull Reiss' truck over; the officer wanted only to stop the truck in front of Reiss, which had no lights on in the middle of the night. Reiss got out and angrily walked toward the officer's car, demanding to know what he did wrong.. The officer ordered him back to his truck. Later, the officer approached, asked Riess why he had gotten out of his truck, and asked for his ID. While doing so, the officer noticed the odor of an alcoholic beverage and Riess was eventually arrested for DUI. The Court of Appeals held the stop of Riess and asking for his ID was justified under the circumstances. "We conclude that the balance of these interests weighs strongly in favor of officer safety; the officer's actions were reasonable and thus did not violate the Fourth Amendment. As the Court noted in Brendlin with respect to passengers, "It is . . . reasonable for passengers to expect that a police officer at the scene of a crime, arrest, or investigation will not let people move around in ways that could jeopardize his safety." 551 U.S. at 258. On the facts of Reiss' case, he was in the same position as a passenger who has been stopped along with a driver but with no reasonable suspicion of wrongdoing by the passenger." See also United States v. Al Nasser, 555 F.3d 722, 725-32 (9th Cir. 2009). Later, the Court stated, "When Ritter approached Reiss' truck, Ritter asked why Reiss had gotten out of his truck and for identification rather than simply telling Reiss he was free to leave. On these facts, however, we see nothing unreasonable about that. Given the aggressive approach Reiss had taken at the scene, Ritter was properly concerned about his safety and asking for identification in this circumstance was itself only a minimal intrusion." The Kansas Supreme Court reversed, and held that Riess was detained after the point the officer requested his ID, and remanded the case to the district court for further proceedings.

Johnson v. City of Memphis, 617 F.3d 864 (6th Cir. 2010). A 911 hang-up call and officers not getting any response to announcement at the open front door were sufficient to establish the emergency exception to the Fourth Amendment warrant requirement. The first officer on scene found the front door wide open and announced that the police were present. He received no response, so entered with his weapon drawn. Backup arrived and did the same. At some point after the officers entered, a second call came in to dispatch with sufficient information to classify the call as a "mental consumer." When officers encountered Mr. Johnson, he went beserk and officers eventually shot and killed him. The district court granted the officers summary judgment. The Sixth Circuit affirmed. Plaintiff argued that the 911 call did not convey sufficient information to establish the exception, but the court rejected the argument, stating:

9-1-1 hang-up calls do convey information. They do not convey certainties, but certainties are not required. 9-1-1 hang-ups inform the police that someone physically dialed 9-1-1, the dedicated emergency number, and either hung up or was disconnected before he or she could speak to the operator. An unanswered return call gives further information pointing to a probability, perhaps a high probability, that after the initial call was placed the caller or the phone has somehow been incapacitated. In some percentage of cases involving this set of facts, a person is in need of emergency assistance. Because the "ultimate touchstone" of the Fourth Amendment is reasonableness, certainty is not required.

Johnson, 617 F.3d at 871.

State v. Moralez, ___ Kan.App.2d ___, ___ P.3d ____ (No. 102342, filed 11/24/10), reversed State v. Moralez, 297 Kan. 397, 415, 300 P. 3d 1090, 1102 (2013) (assigning little significance to the discovery of the warrant). Topeka bicycle cops Whisman and Hilt saw a car in an apartment parking lot at 2:45 a.m. with its lights on. They went to investigate, and noticed the vehicle had expired tags. Moralez came out on an apartment balcony and tried communicating with the officers, but each were having trouble hearing. Moralez came downstairs and officers started asking about the car. Moralez said it belonged to a female named Legate who was in his apartment, and he offered to go get her. Officers asked him to stay. Eventually, Legate came down to visit with the officers. One of the officers requested ID from both persons, and Moralez not only came back with a warrant, but had drugs on his person. The Court of Appeals held that even if Moralez was illegally detained, discovery of the warrant justified the arrest and subsequent search based on State v. Martin, 285 Kan. 994, 179 P.3d 457, cert. denied ___ U.S. ___, 129 S. Ct. 192 (2008)(taint of illegal detention attenuated by rapid discovery of an arrest warrant). Atcheson, J., dissents, saying the majority fails to correctly apply the attenuated taint analysis, and even if it did, it is bad law. He calls the act of asking for ID without reasonable suspicion, "A Fourth Amendment violation, plain and simple." Overruled by Utah v. Strieff.

State v. Currie, ___ Kan.App.2d ___, ___ P.3d ____ (unpublished, 2010 WL 1379696). Reviews State v. Morlock, and Arizona v. Johnson. The panel holds that duration of the detention is the test, not whether an officer contacts and asks questions of/requests ID from detained passengers ("The duration of the stop here is key; Officer Hopkins' act of asking [passenger] Currie for his identification and using it to check for warrants was constitutional. The question is whether this act measurably extended the stop."

State v. Daniel, 291 Kan. 490, 500, 242 P.3d 1186 (2010). An officer stopped Daniel based on his knowledge her driver's license was suspended, and after arresting her, searched her car incident to arrest. In a purse he found methadone. Daniel argued that Leon should not apply to K.S.A. 22-2501(c) after Gant. "[W]e hold prior precedent compels recognizing a good-faith exception when it can be determined the officer conducting the search incident to arrest was acting in objectively reasonable reliance on K.S.A. 22-2501(c). This exception is applicable for searches occurring before Gant was decided on April 21, 2009. The exclusionary rule does not apply to evidence obtained by police who acted in objectively reasonable reliance upon K.S.A. 22-2501(c) prior to the United States Supreme Court's decision in Arizona v. Gant, __ 56 U.S. __, 173 L. Ed. 2d 485, 129 S. Ct. 1710 (2009). Johnson dissents.

State v. White, ___ Kan.App.2d ___, ___ P.3d ____ (No. 103472 filed 11/12/10). A study in how not to do a car stop, pat-down and consent search. A KCK police officer saw the defendant in his vehicle at a stop light with his blinker on. When the light changed, defendant went straight instead of turning. The officer stopped the car. After initial pleasantries, the officer got consent to search the vehicle. No contraband was found. However, the back up officer patted-down the defendant after he got out of the car and found marijuana in the defendant's waist band. His justification for doing so was "officer safety," and he said he routinely performs a pat-down any time he has someone get out of a car. The Court held the detention exceeded the scope and duration of a normal traffic stop and there was no evidence the inital detention turned back into a voluntary encounter. Further, without any justification for the pat-down, the evidence should have been suppressed.

United States v. Johnson, ___ F.3d ___ (10th Cir. No. 10-6066, filed 11/02/2010). An Oklahoma Trooper stopped Johnson's car for an unsafe lane change when he saw Johnson't car suddenly swerve into another lane at about 3:30 in the morning. He first followed it for about a mile, noticing three other occupants making furtive gestures. Instead of approaching the stopped car, he had the occupants come back to his vehicle. When the driver, Johnson, got into the Trooper's car, he could smell burned marijuana. A search of the car yielded a gun belonging to Johnson, a convicted felon. Johnson's motion to suppress was denied because the stop was supported by reasonable suspicion and the search was valid based upon probable cause.

City of Junction City v. Smith, ___ Kan.App.2d ___, 2010 WL 3853329 (Kan. App. September 24, 2010) (unpublished, No. 103281, filed 09/24/10 ). Barbara Smith was in Junction City, stopped at a stop sign, preparing to turn left. The officer behind her noticed that the cover of her left rear turn signal was broken. Although it was partially covered with gray duct tape, the lower portion was not covered and emitted white light from the exposed bare bulb as she turned on her left turn signal. The officer charged Smith with a violation of a city ordinance that mirrors K.S.A. §8-1721(b) and STO §161. It requires that when signaling, rear lights must emit a red or amber light or any shade of color between red and amber. At trial, Smith argued her turn signal was not defective. Smith argued that the ordinance did not expressly exclude white tail lamps. In the Kansas Court of Appeals had no trouble finding that the ordinance is clear and requires that tail lamps emit only red or amber lights when turning. "If the ordinance did not prohibit white light, then it could also be interpreted as not prohibiting blue, purple, green, or any other color light-no color would actually be prohibited. Furthermore, as other state courts have noted in examining this issue, the prohibition of white light in a turn signal serves the general purpose of clarity and conformity in auto signals by ensuring that white light is emitted from only a car’s reverse lights. (citations omitted)"

In re D.C., 2010 WL 3720164 (Cal. Ct. of App). Officers were investigating allegations of drug sales in a housing project. In the course of their investigation they arrested a juvenile probationer. The officers happened upon the probationer's mother. The probationer was handcuffed at this point. The mother consented to a search of the apartment. When the officers arrived at the apartment, D.C., a minor, stood in the doorway, told the officers they could not enter the apartment. D.C. only stepped away from the door when his mother told him to get out of the way. There were three bedrooms in the apartment. One bedroom was used exclusively by D.C. The officers searched D.C.'s room and found stolen property. D.C.'s motion to suppress was denied and his petition was sustained (found guilty). D. C. appealed on more than one ground. D.C. argued his mother had no right to consent to his room, and even if she did, his objection should have overridden the mother's consent. The court held that the mother had apparent authority to provide consent to search D.C.'s room as she was the adult cohabitant. There was no evidence that D.C. paid rent and therefore had exclusive dominion over his room. Moreover, D.C. submitted to his mother's authority when she told him to get out of the way of the officers when they wished to enter the residence. As to the second issue, D.C., as a cohabitant, on scene, can withdraw otherwise valid consent-the court brushed aside this objection as Randolph dealt with two ADULT cohabitants. Here, as D.C. was a juvenile, the court found Randolph did not apply.

In the Matter of D.H., 306 S.W. 3d 955, 2010 Tex. App. LEXIS 1610. Brief seizure of D.H.'s bag by requiring her to leave it in her class as a canine conducted a sniff, was reasonable under the Fourth Amendment in a public school setting.

State v. Barriger, ___ Kan.App.2d ___, 239 P.3d 1290 (No. 102741, filed 10/01/10). Reviewing a suppression issue, the Court of Appeals held that moving a suspected drunk to a safer parking lot for investigation did not turn the encounter into an illegal arrest. A trooper found Barriger's truck parked partially blocking a highway at night with Barriger relieving himself by the side of the truck. The trooper found that Barriger had bloodshot, watery eyes, smelled of alcohol, admitted to drinking earlier that night, and had trouble locating his driver's license in his wallet. Because the two-lane highway had no paved shoulders, was poorly lit, and the truck had stopped near an intersection and a curve, the trooper took Barriger 1 mile down the road to a college parking lot to conduct standard fieldsobriety tests. Barriger alleged that moving him constituted an arrest not based on probable cause, therefore his 0.150 blood test should be suppressed. The court's headnote says it all: "When required for the safety of the officer or suspect, a suspect may be moved a short distance during an investigatory detention if that is consistent with the purposes of the investigation, does not unduly prolong the duration of the detention, and does not otherwise turn the situation into the equivalent of a formal arrest."

State v. Goff, ___ Kan.App.2d ___, ___ P.3d ____ (No. 102369, filed 09/17/10). If an officer detects the odor of raw marijuana emanating from a vehicle, such an odor can provide probable cause to search the vehicle. Under the facts of this case, where an officer detected the odor of raw marijuana emanating from a motor vehicle, obtaining a key to search a locker in the car by asking the driver for it without giving a Miranda warning was not improper. A Lawrence officer stopped Goff's vehicle for a nonfunctioning tag light. After approaching the vehicle, the officer smelled the odor of raw marijuana coming from inside the vehicle. The officer then called for backup and waited for it to arrive. When backup arrived, the officer ordered Goff and two other men out of the vehicle. The officer then searched the vehicle and found marijuana cigarettes in a prescription bottle in the center console. There was also a padlocked, toolbox type locker in the back passenger section of the vehicle. The officer asked Goff for the key to the padlock, and Goff responded that the officer needed a warrant to search the locker. The officer told Goff that he "didn't want to have to break the lock." Goff responded by telling the officer that the key was on the key ring on the center console. The officer unlocked the locker and searched it. The officer found a pipe and a Tupperware container containing approximately 15 bags of marijuana.

United States v. Maynard, ___ F.3d ___ (D.C. Cir. No. 08-3030, filed 08/06/2010). The U.S. Court of Appeals for the D.C. Circuit held that the Fourth Amendment "reasonable search" requirement applies to police when they track the movements of a person's car via an attached GPS device. In so holding, the D.C. Circuit joined a growing list of federal appellate courts that have opined on both sides of the question whether GPS-tracking constitutes a "search" for purposes of the Fourth Amendment's prohibition against unreasonable searches and seizures. The court suppressed location evidence gathered in a month-long surveillance of a conspirator in a cocaine distribution ring.

State v. Carlton, ___ Kan.App.2d ___, ___ P.3d ____ (No. 103086, unpublished opinion filed July 9, 2010). In a 2-1 decision, a majority of a court of appeals panel holds that United States v. McCane, 573 F.3d 1037 (10th Cir. 2009), cert. denied 2010 WL 680526 (03/01/10) requires application of the Leon good faith exception to search of a vehicle incident to arrest for driving while suspended on June 18, 2008. Green cites Knoll in dissenting opinion.

United States v. Jones, No. 09-1731, 2010 U.S. App. LEXIS 11599 (8th Cir. Decided June 8, 2010). Seeing a person walking through a high-crime area on a 69 degree day attired in a hoodie, holding onto something in the pocket of the hoodie, and intently staring at the police car did not amount o reasonable suspicion for a stop. "We suspect that nearly every person has, at one time or another, walked in public using one hand to "clutch" a perishable or valuable or fragile item being lawfully carried in a jacket or sweatshirt pocket in order to protect it from falling to the ground or suffering other damage. With only this circumstance to support Officer Hasiak's suspicion, though we are mindful of the need to credit law enforcement officers who draw on their experience and specialized training, we conclude that "[t]oo many people fit this description for it to justify a reasonable suspicion of criminal activity." Thus, the gun recovered was not admissible in evidence against the convicted felon.

State v. Kerestessy, ___ Kan.App.2d ___, ___ P.3d ____ (No. 101851, filed 06/025/10). A Lyons police officer stoped Kerestessy's car and saw drug paraphernalia in plain view. He arrested Kerestessy and searched his car, finding evidence of methamphetamine manufacturing. Officer went to the home Kerestessy shared with his 10-year live-in baby's mama, who, depending on which version of the facts you believe, consented to search of a school bus on the back of the property where police found a meth lab. The district court suppressed the evidence, finding no actual or apparent authority to consent. The Court of Appeals affirmed. It held that when officers are presented with ambiguous facts related to authority to consent to a search of property, the officer has a duty to investigate further before relying on a consent. In this case, officers never asked who owned the house nor the bus. Baby's mama had never been in the bus, nor did she know what was in it.

United States v. Salazar, ___ F.3d ___ (10th Cir. No. 09-3073, filed 06/22/10). In a firearm possession prosecution, the district court's order suppressing defendant's firearm is reversed where: 1) defendant was not seized until he submitted to the police's show of authority by obeying a command to get out of his truck; and 2) at the time that defendant submitted to the officer's authority, the officer had reasonable suspicion to detain him. Trooper Berner was fueling his vehicle and saw a Ford pickup enter the parking lot directly across the highway at a location known as Tee Pee Junction in Lawrence. The pickup make a U-turn, backed up the entire length of the parking lot, and shut its lights off. The pickup truck parked next to a vehicle belonging to Wright’s Tree Service. Berner though the occupant was up to no good, and drove across the highway toward the parking lot with his headlights off. As Berner approached, the pickup turned on its headlights and began moving forward toward the patrol car. Berner

activated his emergency lights. Both cars stopped. After spotlighting the driver, the pickup started slowly backing up. Berner drove forward in his patrol car. After backing about 20 feet, the pickup stopped, then started to drive around the patrol car. Berner stepped out of his car, drew his firearm, and yelled at Mr. Salazar to stop and get out of the pickup. At that point, Mr. Salazar complied. After arresting the driver for driving without a license, Berner found a loaded .38 caliber revolver with an obliterated serial number laying on the ground. Ammunition and other items found in the pickup connected Salazar to the firearm. Applying the familiar rule from Hodari D, the Circuited held that Salazar was not seized until he stopped, and there was reasonable suspicion to support the seizure at that point. When an officer does not apply physical force to restrain a suspect, a Fourth Amendment seizure occurs only if (a) the officer shows his authority; and (b) the citizen "submit[s] to the assertion of authority." See Hodari D., 499 U.S. at 625-26 (1991)." While Berner's activation of his flashing lights constituted a show of authority, there was no submission to the assertion of authority until Salazar stopped his pickup after being ordered to at gunpoint. Cf. United States v. Morgan, 936 F.2d 1561 (10th Cir. 1991)(brief submission, followed by flight, to an order to "hold up" after following the suspect for several blocks was held to be a seizure).

United States v. Sanchez, ___ F.3d ___ (10th Cir. No. 09-2339, filed 06/15/10). Sanchez was on parole for drug violations when two parole officers went to his house for a home visit. Officers were acting on information that Sanchez was living beyond his means and had recently purchased a new house and a new car. Sanchez's 15-year old daughter greeted officers at the door, and gave them a tour of the house. In Sanchez's bedroom, officers saw gang-related clothes in the closet, causing them to look in a clothes hamper where they found $111,000 in cash. They then called police, and the search continued. As officers entered the garage, they smelled marijuana and discovered over 100 kilograms. Sanchez claims his live-in 15 year old daughter did not have actual or apparent authority to consent to the search. The Circuit disagreed, finding the daughter had actual authority and her consent was not coerced.

City of Ontario v. Quon, 560 U.S. ___, 130 S. Ct. 2619, 177 L. Ed. 2d 216 (U.S. 2010), (No. 08-1332, filed 06/17/10). California SWAT sergeant Jeff Quon was fired for using his departmental pager to transmit sexually explicit messages to his wife. The 9th Circuit held the department violated the officer's Fourth Amendment rights, and also faulted the text-messaging service for turning over transcripts of the messages without the officers' consent. The United States Supreme Court reversed. During the internal affairs investigation (which only looked at on-duty messages), Quon sent or received 456 messages, of which only 57 were work-related. He sent as many as 80 messages on one day, and averaged 28 messages a day, only three of which were work-related. The Court assumed, without deciding, that Quon had a reasonable expectation of privacy, that the employer's review constituted a Fourth Amendment search and that the government employer's search rules applied with equal force to privacy in the electronic sphere. The special needs of the workplace are an exception to the general rule that warrantless searches are presumptively unreasonable. And the search in this case was justified at its inception and the measures adopted were reasonably related to the objectives of the search and were not excessively intrusive in light of the circumstances warranting the search. There is no requirement for an employer to use the least intrusive search method.

State v. McGinnis, 40 Kan.App.2d 620, 193 P.3d 46 (2008), affirmed, ___ Kan. ___ (No. 99217 filed 06/04/10). An Atchison Co. Sheriff's deputy was dispatched to the report of a possible stolen car dumped in/at the Missouri River. While enroute, the deputy observed a car with Missouri tags headed toward the stolen car. The deputy followed the car into a fishing area on a seldom-used dead-end road. In the dead-end area there was sufficient room for vehicles to turn around in the grass parking area and return to the main county road if a person so wished. The deputy pulled up 2-3 car lengths behind the car without activating his emergency lights. The driver was , who was by then out of his car, standing at the river and looking in the direction of the stolen car. As the deputy walked past the stopped vehicle, he noticed a 12-pack of beer in the front seat. The deputy greeted the driver, McGinnis, and had a brief, friendly conversation. The deputy immediately noticed the odor of alcohol on McGinnis, his bloodshot eyes and slurred speech. McGinnis admitted to having two beers. The deputy then requested McGinnis perform field sobriety tests to which McGinnis consented.....and promptly failed. McGinnis was arrested, and his BAC came back .12. McGinnis argued he was stopped without reasonable suspicion at the point in time the deputy pulled up behind McGinnis' car. The Court held that since the deputy did not block McGinnis' car (thus allowing a reasonable person to leave if he so wished), and did not activate the patrol car's red lights (no show of authority), the event began as a consensual encounter and only became a detention once the deputy had seen the beer in the car and the usual indicators of DUI.

United States v. Jermall Campbell, a/k/a "L,"___ F.3d ___ (10th Cir. No. 09-3212, filed 05/10/10). The Wichita gang unit conducted an extensive RICO investigation of Wichita area gang members. Detective Goodwyn served as the affiant on a 120-page Affidavit in Support of a search warrant authorizing a search of defendant's home for evidence of his involvement in the Neighborhood Crip gang. The affidavit detailed defendant's gang-related crimes violence and drug crimes dating back ten years. Although Goodwyn had no personal knowledge about the defendant, details of the affidavit were verified by gang unit members assigned to that particular target of the investigation. Police searched defendant's home and he was eventually convicted of possessing ammunition as a convicted felon. He attacked the warrant in all respects, claiming the information was stale, not based on personal knowledge, and alleged that police made misleading statements and omitted information in the affidavit. The Circuit rejected all challenges, holding that even if the affidavit did not establish probable cause, the Leon good faith doctrine required upholding of the warrant. The Court stated that while there was some failure to communicate all information among gang unit members, that single instance of an arguably negligent breakdown in communication was not recurring or systemic negligence sufficient to overcome the Leon good faith presumption.

United States v. Silva-Arzeta, ___ F.3d ___ (10th Cir. No. 07-5140, filed 04/27/10). Tulsa police were conducting gang surveillance on an apartment complex and saw the defendant arrive and leave an apartment a couple times after a short stay. They stopped him for not wearing a seat belt and arrested him for driving without a license. While handcuffed and with three officers present, he consented to a search of his apartment, where police found methamphetamine and a firearm. Silva-Arzeta contends the evidence should have been suppressed because he did not understand English, he was coerced into consent and he was not given an interpreter. The Circuit disagreed. All officers agreed that defendant appeared to understand and spoke English. Although he was later interviewed by a Spanish-speaking officer, nothing in the record suggested he did not understand what was being asked. The court found consent was valid even though the defendant was in handcuffs and three officers were present. The consent was given in public, only one officer was interacting with defendant; the other two were preparing a tow bill on his car and searching the car. No one drew a weapon, the consent came after a Miranda warning, and there were no promises, trickery or threats of violence. Lastly, while the better practice would have been to get written consent and to tape the Spanish-speaking interview of the defendant, due process does not require best police practices. Holloway, J., dissented, arguing that in view of an allegation of evidence termpering and other extraordinary circumstances, the deficiciencies in law enforcement practices were "very, very troubling," and taken together, amount to plain error.

United States v. Fox, ___ F.3d ___ (10th Cir. No. 09-5131, filed 03/22/10). Tulsa police were conducting surveillence on Fox. Ms. Chiles approached Fox's home as officers were arresting Fox. An officer stopped her in the street, asked her what was going on, then got in the car and directed her to pull in to a nearby convenience store. Chiles did not have a driver's license. While awaiting the return from dispatch, the officer received consent to search the car and found methamphetamine. Chiles then advised she was Fox's wife and lived with him. She consented to a search of his house. Officers found a sawed-off shotgun therein. Fox was charged with being a felon in possession of an illegal weapon. He alleged that Chiles consent was tainted by her illegal detention. The Tenth circuit agreed, finding that the act of directing her to park at the convenience store was a seizure, and the government never articulated any reasonable suspicion to detain Ms. Chiles. Finding no attenuation, the Circuit reversed and held the motion to suppress should have been granted.

United States v. Fisher, ___ F.3d ___ (10th Cir. No. 09-6142, filed 03/10/10). Oklahoma City police received a 911 call of shots fired. They arrived three minutes later and were flagged down by a woman who told them a black male in a gold shirt shot at her and her son. An officer approached a car in the driveway that had its brake lights illuminated and drew down on the occupants and ordered them to get their hands up. Defendant, a passenger in the car, rolled down his window and stuck out his hands, revealing a gold sleeve on his shirt. Police found a gun under his seat. Fisher was a convicted felon. Fisher alleges the officer did not have reasonable suspicion to approach him. The Circuit disagreed, finding the nature of the call, the officer's speedy arrival, and the minimal level of justification required all supported reasonable suspicion. In addition, the court noted it was late a night, a high-crime area and the illuminated brake lights indicated the vehicle was about to leave.

State v. Burdette, ___ Kan.App.2d ___, ___ P.3d ____ (No. 101,288, filed 02/19/10). Having two deputies present during a search conducted by an acting principal did not transform a school search into a law enforcement search requiring probable cause. A teacher saw Buredette acting "really really different" while standing at his locker talking to his friends. The teacher said Burdette appeared to be ill or under the influence of something, and his eyes were "basically shut." The teacher told a counselor, who had Burdette brought to the principal's office. The SRO and a visiting deputy overheard the teacher's conversation with the counselor and also went into the principal's office. The principal told Burdette to empty his pockets. Burdette had two baggies containing marijuana. The court found the search conducted by the school official was justified at its inception because it was reasonably based on a violation of law or school rules, and the search was reasonably related to the circumstances prompting the search.

United States v. Henderson, ___ F.3d ___ (10th Cir. No. 09-8015, filed 02/17/2010). A Wyoming detective determined that the defendant was engaged in exchange of child pornography, but his warrant affidavit failed to disclose (1) who informed him that a computer with the relevant IP address had transferred child pornography; or (2) the method used in this case to establish that a computer at the specified IP address transferred videos with child-pornography associated SHA values. The circuit held the warrant and affidavit were defective, but held that officers acted in objective good faith in executing a warrant and the evidence was thus admissible pursuant to United States v. Leon, 468 U.S. 897, 921-23 (1984).

United States v. Mann, No. 08-3041, 2010 U.S. App. LEXIS 1264 (7th Cir. Decided January 20, 2010). Officer exceeded scope of a search warrant allowing search and seizure of "video tapes, CD's or other digital media, computers, and the contents of said computers, tapes, or other electronic media, to search for images of women in locker rooms or other private areas." Mann, a perverted life guard instructor, installed a hidden video camera in the women's locker room. A woman found it and gave it to police. Mann had captured himself on video installing the camera. Officers seized Mann's computer. Two months later, a detective searched the computer by using a "write blocker" to protect the hard drives from being altered, then used "forensic tool kit" ("FTK") to catalogue the images on the computer into a viewable format. An overview provided by the software also lists files flagged by the software as "KFF (Known File Filter) Alert" and "KFF Ignorable" files. The "KFF Alert" flags those files identifiable from a library of known files previously submitted by law enforcement--most of which are images of child pornography. Officers found stories about child molestation and child pornography. A later search of a hard drive identified much more child pornography as well as two videos from the locker room. Mann alleged that the detective exceeded the scope of the search warrant when he discovered child pornography on the computers and external hard drive. The district court denied the motion to suppress. The Circuit affirmed. It held that using FTK to catalog the files did not exceed the scope of the warrant, reasoning that images of women in locker rooms could be hidden practically anywhere on the computers. However, court took issue with the detectives use of the "KFF Alert" files. They reasoned that once the "KFF Alert" flagged a file, the detective should have known that the file was likely to be child pornography, which was not within the scope of the search warrant. Therefore, the four images obtained by the "KFF Alert" should be suppressed. Fortunately, there was still ample evidence of child pornography to uphold Mann’s conviction. The Court took the time to counsel officers to ensure that their search warrants for digital media (1) particularly describe the things to be seized and (2) that the officers narrowly tailor their searches to be within the scope of the search warrant. The court went on to state:


Although we now hold that his actions were within the scope of the warrant, we emphasize that his failure to stop his search and request a separate warrant for child pornography is troubling…Because Detective Huff was not in a rapidly unfolding situation or searching a location where evidence was likely to move or change, there was no downside to halting the search to obtain a second warrant. Indeed, we find it problematic that nearly two months elapsed before Detective Huff began his search of the Western Digital hard drive despite having found child pornography on the Dell laptop. However, notwithstanding our distaste for the timeline of the investigation, we conclude that the original warrant authorized Detective Huff's search of the external hard drive for images of voyeurism.


Sentencing

United States v. McConnell, ___ F.3d ___ (10th Cir. No. 09-3036, filed 05/19/10). Defendant's prior conviction for felony fleeing and eluding under K.S.A. 8-1568 was properly considered a crime of violence to enhance the defendant's current sentence for possession of a firearm after conviction of a felony.

Traffic Violations

State v. Trostle, ___ Kan. ___, ___ P.3d ___ (No. 103072, filed 09/17/10). There was sufficient evidence to convict the defendant, a tractor-trailer driver, of committing an improper U-turn. The driver was headed North on a road, and wanted to turn around and go South. She intended to turn left at an intersection and swung wide right to do so, getting her trailer stuck in the mud blocking the road. She basically alleged that since she intended to execute a K-turn, she could not be convicted of an illegal U-turn. The Court rejected her argument, noting that K.S.A. 8-1546 does not define the term "U-turn." It also does not make a U-turn illegal. Instead, it proscribes turning a vehicle "so as to proceed in the opposite direction" unless the move can be made safely and without impeding traffic. K.S.A. 8-1546(a). This effectively puts motorists on notice of what conduct is proscribed by the law. See State v. Busse, 252 Kan. 695, 699, 847 P.2d 1304 (1993).

Workers Compensation

Kotnour v. City of Overland Park, 43 Kan. App. 2d 833, 233 P.3d 299 (No. 102619, filed 05/28/10). John Kotnour, an 18-year veteran of the OPPD, jumped off a 4-5 foot retaining wall while chasing a suspected car thief on September 21, 2007. A few days after jumping off the wall, Kotnour noticed a "twinge" in his right knee. Kotnour did not really think of the jump as an accident, nor did he think of the twinge as an injury. He stated he was not debilitated by the pain and thought it would go away eventually. He did not report the injury to the City until December 4, 2007. The City denied his claim on the grounds Kotnour failed to timely report his injury. An ALJ upheld the denial, but the board reversed. The Board determined that Kotnour had just cause for his delay because he thought the injury would eventually heal itself. The Board granted Kotnour $7,140 for 14 weeks of permanent partial disability benefits and payment for his medical expenses. The Court of Appeals affirmed, finding the holding supported by substantial competent evidence.






2009 Case Update List


ADA

Hennagir v. Utah Dep't of Corr., ___ F.3d ___ (10th Cir. No. 08-4087, filed 09/10/09). Plaintiff was a physician's assistant at a Gunnison Utah prison. The state decided that any position having inmate contact required POST certification. Plaintiff could not meet the physical requirements due to conditions including lupus, osteoarthritis, rheumatism, avascular necrosis, Sjögren’ssyndrome, and fibromyalgia. She has had both hips replaced and underwent surgery on her left shoulder. As a result of these maladies, Hennagir is limited in activities such as sitting, bathing, sleeping, lifting, bending and flexing, climbing stairs, running, and biking. The state offered to transfer her to another prison or termination. She filed charges alleging disability discrimination. The Circuit held that a job function that is rarely required in the normal course of an employee's duties can be essential when the potential consequences of employing an individual who is unable to perform the function are sufficiently severe. Noting the potential consequences of an inmate attack are incredibly severe, it is reasonable to require employees who have direct contact with inmates to undergo training on responding to these dangerous scenarios. The Circuit also held that it is unreasonable for an employee to demand identical job duties less the disputed essential job requirement, regardless of the label given to the proposed accommodation.

http://ca10.washburnlaw.edu/cases/2009/09/08-4087.pdf

Iverson v. City of Shawnee, Kansas, ___ F.3d ___ (10th Cir. No. 08-3264, filed 06/17/09, unpublished). Plaintiff, a police officer injured her back and was no longer able to qualify with her weapon. She alleges the City of Shawnee discriminated against her in violation of the ADA by not assigning her to a vacant position and by failing to engage in an interactive process to accommodate her disability. The district court held plaintiff failed her burden of proof to show that a vacant position existed. The circuit affirmed.

ADEA

Gross v. FBI Financial Services, 556 U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 08-441, filed 06/18/09). The ADEA does not authorize a "mixed motive" age discrimination claim. A disparate treatment claim required proof by a preponderance of the evidence that age was the but-for cause of the adverse employment decision. This burden is different than the burden-shifting analysis in Title VII cases. The burden does not shift to the employer to show that it would have taken the action regardless of age.

http://www.supremecourtus.gov/opinions/08pdf/08-441.pdf

Arrest

United States v. Charles, ___ F.3d ___ (10th Cir. No. 08-3212, filed August 11, 2009). Topeka police suspected open air drug sales at the Oak Tree Square Apartments. Residents would routinely scramble up the stairs when police approached, so Hannan and Gardner placed themselves on the second floor and would intercept folks that fled. Ronnie Charles decided to flee upstairs and ran into Gardner and Hannan. Charles pushed Garnder and dragged him down some stairs before he was subdued. He also had a gun in his waistband, and was a convicted felon. Charles alleged that Gardner just tackled him and searched him. Charles alleged he was illegally detained. The district court found the officer's version of events more credible and denied the motion to suppress. The Circuit affirmed. However, it vacated Charles sentence and remanded for resentencing because his prior escape from custody was not a crime of violence for purposes of USSG § 4B1.1(a).

http://ca10.washburnlaw.edu/cases/2009/08/08-3212.pdf

State v. Cox, ___ Kan.App.2d ___, ___ P.3d ____ (No. 99943, filed 04/24/09). A Yates Center officer stopped Cox's vehicle for a window tint violation. When Cox could not produce proof of valid insurance the officer arrested him, then found methamphetamine on his person in a search incident to arrest. Cox alleged that K.S.A. 40-3104 only allowed issuance of a citation. The Court of Appeals disagreed.

http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2009/20090424/99943.htm

Civil and Criminal Liability

Bryan v. McPherson, 608 F.3d 614 (9th Cir. No. 08-55622, filed 06/18/10, withdrawn and amended, 11/30/10). In a 42 U.S.C. section 1983 action based on defendant-officer's use of a taser on plaintiff at a traffic stop, denial of summary judgment based on qualified immunity is affirmed where, viewing the circumstances in the light most favorable to plaintiff, defendant's use of the taser was unconstitutionally excessive and a violation of plaintiff's clearly established rights.

Ellis v. Ogden City, 589 F.3d 1099, (10th Cir. No. 08-4166, filed 12/17/09). A city police struck and killed an innocent bystander while pursuing a known gang member at high speeds through residential areas. Plaintiff alleged that the officers had been ordered to stop the chase due to the public safety concerns of supervisors, but the officers continued it on their own initiative. The lower court dismissed the complaint because it did not include an express allegation that the officers subjectively intended to cause harm to the deceased bystander. The appellate court agreed and affirmed the dismissal. The court reasoned that prior Supreme Court precedent required a federal civil rights plaintiff to establish that pursuing officers "acted with an intent to either physically harm the suspect or worsen his legal plight." The appellate panel concluded that an intent to injure an innocent bystander was also a requirement where the plaintiff was not the subject of the pursuit. The court rejected plaintiff's reliance on earlier precedent - no longer good law - that would impose liability where pursuing officers "disregard a known danger." The appellate court concluded that "the plaintiff must establish not that the officers acted with reckless indifference but that the officers intended to cause harm." General allegations of obvious and avoidable risk will not suffice to meet this test.

Lovitt v. Board of Shawnee County Commissioners, ___ Kan.App.2d ___, ___ P.3d ____ (No. 101,159, filed 12/18/09). Plaintiff claimed intangible damages due to the refusal of a dispatcher to send help in response to a 911 emergency call. Plaintiff was a passenger in a motor vehicle operated by his mother, who suffered a seizure and lost control, resulting in a non-injury accident. When the minor plaintiff reported the accident, the dispatcher mistakenly concluded that it was a prank call and refused to send aid. Within less than a minute an adult passerby made a separate call to report the accident, and emergency responders were dispatched in response to this second call. Emotional distress damages were sought under the theory that the refusal to send help met the requirements for the tort of outrage or negligent infliction of emotional distress under Kansas law. The lower court granted summary judgment for the defendant, reasoning that the public duty doctrine and statutory immunity protected the dispatcher and her employer. The appellate court affirmed, holding that any duty to respond to 911 emergency calls is a duty owed to the general public, not an actionable tort duty owed to individuals, at least in cases where there is no proof of detrimental reliance on a promise to dispatch help. In addition, the discretion inherent in the dispatcher's decision to identify the call as a suspected prank was enough to trigger statutory tort immunity. The opinion also reaffirmed the unavailability of a cause of action for purely emotional injuries based on a negligence theory under Kansas common law. The facts did not establish the severe emotional distress required for a recovery of damages under the tort of outrage.

Herrera v. City of Albuquerque, ___ F.3d ___ (10th Cir. No. 09-2010, filed 12/14/09). Plaintiff sued a police officer for a § 1983 violation alleging she was arrested without probable cause to believe child abuse by endangerment occurred. The officer responded to a domestic disturbance of which plaintiff was a victim. Plaintiff was 16 years old and had a three-year old son. Plaintiff had been drinking when the officer responded. The house was filthy and had razors, food, cigarette butts and clothes on the floor. The bathtub was full of black water and emitting a foul odor. There was also a vicious Pit Bull chained in the backyard that had access to the kitchen. The Circuit held the New Mexico law at issue was not clearly established as to what constituted abuse by endangerment at the time of the arrest in 2005, and did not become so until 2009. Accordingly, it affirmed summary judgment on qualified immunity grounds for the officer.

Bowling v. Rector, ___ F.3d ___ (10th Cir. No. 07-6284, filed 10/26/09). In a 42 U.S.C. section 1983 action alleging an unlawful search, denial of summary judgment for defendant based on qualified immunity is affirmed in part where defendant's alleged conduct in exceeding the scope of the search warrant violated plaintiff's clearly established right under the Fourth Amendment. However, the order is reversed in part where: 1) defendant's alleged violation of Oklahoma law was not, without more, significantly relevant to the Fourth Amendment analysis; and 2) a search warrant was constitutionally valid. A bank suspected that Bowling was selling cattle in which the bank had a security interest and not accounting for the proceeds. Bowling was allegedly doing so in his wife and son's name. A special ranger with the Oklahoma State Bureau of Investigations with authority to investigate livestock larcenies swore out an affidavit and obtained a warrant for Bowling's property. The special ranger and others executed the warrant, and seized bank records and other items named in the warrant, as well as some marijuana that was not named in the warrant. Bowling sued Rector alleging he exceeded his statutory authority. The Circuit held that even if Rector violated state law by exceeding his statutory authority, the warrant affidavit established probable cause and Rector should have been granted immunity on that claim. It affirmed on the reasonableness in execution of the warrant and remanded for further proceedings.

http://ca10.washburnlaw.edu/cases/2009/10/07-6284.pdf

Fisher v. City of Las Cruces, 584 F.3d 888 (10th Cir. 2009). Plaintiff successfully alleged more than de minimis injury sufficient to support an excessive force by handcuffing claim. Las Cruces police responded to a shots fired, possible suicide call. Robert Fisher took at least two doses of Xanax, an anti-anxiety prescription medication, and the better part of a pint of vodka. He passed out in his backyard. When he awoke, he began to hallucinate that a large animal was threatening him. Fisher ran inside, retrieved a 9 millimeter handgun, and returned to the backyard to confront the illusion. Staggering and delirious, Fisher instead accidentally shot himself in the stomach. As he fell to his knees, his gun discharged again and a second bullet struck him in the left bicep. Fisher’s wife, Mary Fisher, was inside the house and heard Fisher’s cries for help. She called 911. While talking to the operator, Mary Fisher walked outside, apprehended the gun, and placed it in the kitchen. Responding officers knew that Mary had retrieved the gun. They entered the backyard with guns drawn, and patted down Robert, finding no other weapons. His wounds were clearly visible. One officer began giving Robert medical assistance, while the other went inside and retrieved the weapon. Upon returning to the yard, he ordered Robert to lay on his stomach and put his hands behind his back. Robert protested, but the officer placed his knee on Robert's back and forcefully applied the handcuffs. Robert testified that doing so caused him "excruciating pain." The district court granted the officers summary judgment based on qualified immunity. The Circuit reversed, finding the force excessive, the law clearly established, and that Robert's petition could be fairly read to establish more than a de minimis injury.

http://ca10.washburnlaw.edu/cases/2009/10/07-2294.pdf

Adams v. Board of Sedgwick County Comm'rs., ___ Kan. ___, 289 Kan. 577, 585, 214 P.3d 1173 (2009). "Hence, the analytical matrix established by the legislature in enacting the KTCA dictates that a governmental entity can be found liable for the negligent or wrongful act or omission of any of its employees while acting within the scope of their employment only if (1) a private person could be liable under the same circumstances and (2) no statutory exception to liability applies." Defendant ran an outpatient mental health center (ComCare) tasked with treatment and supervision of Adam Cummins after his discharge from involuntary commitment at Osawatomie. Adam frequently became non-compliant with his medication and would become violent. The mental health center allowed an outpatient treatment order to expire despite Adam's noncompliance with his medications. In September 1999, ComCare closed Adam's case due to refusal of services and noncompliance. In April 2000, Adam's condition deteriorated and he began beating his mother with a hammer, causing his daughter to shoot and kill him. Mother and daughter sued the county for negligence. The Supreme Court held the county owed no duty to Mother and Daughter because no special relationship existed under Restatement, Torts § 315 or 319, finding outpatient treatment does not give the kind of control required to create a special duty. Therefore, it did not consider whether tort claims exceptions applied. It so held despite ComCare's failure to report noncompliance with the court order as required by K.S.A. 59-2967(e), finding the statute creates a duty to the public but not to plaintiffs.

http://www.kscourts.org/Cases-and-Opinions/opinions/supct/2009/20090904/99195.htm

Swanson v. The Town of Mountain View, 577 F.3d 1196 (10th Cir. 2009). Mountain View officers stopped two vehicles for traffic violations that actually occurred in the adjoining City of Denver. The Circuit granted the officers qualified immunity, because a reasonable police officer would not have known in 2006 that extra-jurisdictional, but within the same state, traffic stops constituted a violation of clearly established Fourth Amendment law when there is no dispute that the officers observed traffic violations before making the stops.

http://ca10.washburnlaw.edu/cases/2009/08/08-1105.pdf

Manzanares v. Higdon, 575 F.3d 1135 (10th 2009). Albuquerque police were working a rape case. Danny Manzanares had socialized with the suspect early in the evening on the date of the rape. Albuquerque police went to Manzanares's house at about 5:00 a.m. and sought and received consent to enter. Manzanares knew the suspect as "Rick," and said they worked together, but Manzanares said he did not know Rick's last name. At some point, Manzanares asked officers to leave. They didn't, and Manzanares became agitated. Officers then handcuffed him. At one point officers removed the handcuffs while awaiting additional investigators. At about 8:00 a.m., Manzanares admitted he knew the suspect's full name, and agreed to guide police to the suspect's house. Manzanares was cuffed again and detained in the back seat of a police car for at least three hours. Officers said their treatment of Manzanares was justified because they had reasonable suspicion or probable cause to believe Manzanares was a witness and was obstructing their investigation, and because they reasonably feared that Manzanares would attempt to assist "Rick." During trial, the parties filed cross-motions for judgement as a matter of law. The trial court denied them and the jury returned a verdict for the officer defendants. The 10th Circuit reversed, holding that officers violated Manzanares's Fourth Amendment rights by refusing to leave Manzaneres's home once consent was revoked, and by arresting him without probable cause based solely on a hunch that "Manzanares knew more than he was willing to say.". Finding the law on both constitutional violations was clearly established, the court remanded with instructions to grant Manzanares's motion for judgement as a matter of law and to conduct a new trial on damages.

http://ca10.washburnlaw.edu/cases/2009/08/07-2156.pdf

Sherouse v. Ratchner, et al., ___ F.3d ___ (10th Cir. No. 08-2105, filed 07/31/09). A fourteen year old African-American girl and a thirteen year old Hispanic girl sued Albuquerque police (AP) for hauling them to the police station. AP were investigating robberies described as being committed by a black female, 5'2" and 110 to 120 pounds, some describing her as 17, others saying she was in her 20s. Around the same time, a neighbor called police about the two plaintiffs, who were sitting on a curb near an apartment complex near one of the robberies. Determining the black female matched the robber's description, an AP officer handcuffed her and put her into the back of his police car. Witnesses were brought to the scene, and some may have identified the black female as the robber. None identified the Hispanic girl. AP then transported both girls to the police station, and later released them. The girls sued, and the jury found for the defendants. The girls appealed, claiming jury instructions were improper. The Circuit affirmed on the jury instructions, but reversed the verdict as to the Hispanic girl, finding no probable cause for her arrest.

http://ca10.washburnlaw.edu/cases/2009/07/08-2105.pdf

Cordova v. Aragon, ___ F.3d ___ (10th Cir. No. 08-1222, filed 06/17/09). In a 42 U.S.C. section 1983 action alleging excessive force by Defendant officers, summary judgment for Defendants based on qualified immunity is affirmed in part, where there was no genuine issue of material fact as to whether a policy of the city was the moving force behind any violation; but reversed in part where, when an officer employs such a level of force that death is nearly certain, he must do so based on more than the general dangers posed by reckless driving.

Cassady v. Goering, ___ F.3d ___ (10th Cir. No. 07-1092, filed 05/28/09). A warrant allowing search of an entire farm and seizure of "any evidence of criminal activity," is a general warrant proscribed by the Fourth Amendment, and a Sheriff responsible for the drafting and executing of such a warrant is not entitled to qualified immunity. Two Colorado grain farmers became involved in a dispute over grain stored on defendant's farm. Cassady attempted to cut off the grain owner's (Queen) right of access to the grain. A fight ensued. Queen apparently won the fight. When police arrived, Queen told them Cassady had marijuana plants on his property. Queen said he saw them growing in a quonset hut. Despite the lack of physical injuries to Queen, Sheriff Goering arrested Cassady for battery and directed a deputy to get a search warrant. He also allowed Queen to remove the disputed grain. The deputy had never drafted a narcotics search warrant. The warrant allowed a search of the entire farm for, among other things, "any and all narcotics," and "any and all illegal contraband," and "all other evidence of criminal activity." The evidence established the officers really trashed the place while serving the warrant. The evidence was suppressed in the criminal action against Cassady. Cassady sued Goering for violating his Fourth Amendment rights. The case was tried to a jury, which awarded Cassday judgment. However the verdict was set aside due to an "prejudicially low damages award." Goering appealed from denial of qualified immunity. The Circuit affirmed denial of qualified immunity due to the general warrant holding. McConnell wrote a 21 and ½ page dissent stating the severability doctrine should have been applied to save the warrant.

http://ca10.washburnlaw.edu/cases/2009/05/07-1092.pdf

Poolaw v. Marcantel,___ F.3d ___ (10th Cir. No. 07-2254, filed 05/07/09). New Mexico police officers violated the Fourth Amendment and are not entitled to qualified immunity for an illegal search of a police murderer's in-laws' home. A familial relationship is insufficiently particularized to justify invading an individual’s reasonable expectation of privacy. There were insufficient facts to support a finding of either probable cause to search the property or reasonable suspicion to detain the suspect's sister-in-law.

http://ca10.washburnlaw.edu/cases/2009/05/07-2254.pdf

Adamson v. Bicknall, ___ Kan.App.2d ___, ___ P.3d ____ (No. 99,503, filed 05/15/09). Wilfull driving of a vehicle while under the influence of drugs will support a claim for punitive damages even without evidence regarding the level of impairment. Also, the district court erred in excluding evidence about medical payments that were written off by providers pursuant to medicaid reimbursement was error unless there is sufficient evidence that shows it was a medicaid reimbursement.

Pearson v. Callahan, 555 U.S. ___, 129 S.Ct. 808, ___ L.Ed.3d ___ (No. 07-751, filed 01/21/09). The case stems from a police raid in Filmore, Utah on Afton Callahan's home in 2002. After an informant entered the home and bought illegal drugs, police raided the house without a warrant. Applying the Saucier v. Katz, 533 U. S. 194 (2001), test, the 10th U.S. Circuit Court of Appeals found the raid was unconstitutional, and the rights violated were clearly established. The Supreme Court reversed, finding the law was not clearly established on "consent once removed." It pointed out that three federal courts and two state supreme courts had approved of consent once removed searches, and the officers in this case were entitled to rely on those decisions even though its own circuit had yet to address the issue. Slip opn. at 19. Additionally, the Court declines to overrule Saucier, but modifies it to say that while its' two-step sequence is often appropriate, "it should no longer be regarded as mandatory." Slip opn. at 10. The Court went on to explain that judges should be able to decide which of the two prongs should be addressed first in light of the circumstances at hand in a particular case. The 2001 decision in Saucier established a two-step test for deciding whether police deserve immunity from lawsuits claiming they violated someone's constitutional rights. First, it must be established that the claimant's constitutional rights were violated. If so, the next question is whether that right was clearly established -- in other words, well-enough known that a reasonable officer should have known what it was. Saucier had been criticized on the basis that it departs from the general rule of constitutional question avoidance - which means that if a case can be decided on a basis other than a constitutional pronouncement, it should be.

http://supct.law.cornell.edu/supct/html/07-751.ZO.html

DL Suspension Hearings

Cuthbertson v. Kansas Department of Revenue, ___ Kan.App.2d ___, ___ P.3d ____ (No. 101,494, filed 12/04/09). An officer arrested Cuthbertson for DUI. Cuthbertson had a CDL, but was not driving a commercial vehicle at the time of his arrest. The officer gave him the standard implied consent advisories. Prior to taking and failing the test, Cuthbertson asked what effect a test failure would have on his CDL. The officer misrepresented that Cuthbertson CDL would be suspended for a year, but in actuality it was a second failure or refusal so it led to a lifetime suspension of Cuthbertson's CDL. Cuthbertson claimed that the incorrect statement about his CDL should result in reinstatement. The Court held that while the advice given by the officer was incorrect, a CDL advisory pursuant to K.S.A. 8-2,145(a) was not required and Cuthbertson could show no prejudice from the mistake since he had already decided to take the test, and even if he hadn't, the result would have been the same.

Rivera v. Kansas Department of Revenue, ___ Kan.App.2d ___, ___ P.3d ____ (No. 100,279, filed 05/08/09). The district court erred in dismissing Rivera's petition for review of the KDOR's suspension order. The pleadings substantially complied with K.S.A. 77-614, and although the petition raised several issues outside the scope of the administrative hearing, the district court should have considered the petition, applying Kingsley v. Kansas Dept. of Revenue, 288 Kan. ___, 204 P.3d 562 (2009), and Martin v. Kansas Dept. of Revenue, 285 Kan. 625, 176 P.3d 938 (2008).

http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2009/20090508/100279.htm

Mitchell v. Kansas Department of Revenue, ___ Kan.App.2d ___, ___ P.3d ____ (No. 99,372, filed 02/13/09). In a driver's license suspension hearing, the government could not show substantial compliance with the KDHE breath testing protocol where they left the subject to be tested alone in a restroom for 2-4 minutes and allowed them to drink water during the deprivation period. The drunk blew a 0.194.

http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2009/20090213/99372.htm

Domestic Violence

State v. Curreri, 42 Kan.App.2d 460, 213 P.3d 1084 (2009). The Kansas domestic battery statute, K.S.A. 21-3412a, when applied to unmarried cohabitating couples, is not unconstitutional due to a conflict with Kansas' Defense of Marriage Amendment to the Kansas Constitution, art. 15, § 16 (2008 Supp.).

http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2009/20090821/100299.htm

State v. Perez-Rivera, 41 Kan.App.2d 579, 203 P.3d 735 (2009). Participants being over the age of 18 is one of the elements of domestic battery. Where the state failed to offer any proof of the victim's age, a domestic battery conviction must be reversed. The circumstantial evidence defendant and the victim had been married 2.5 years and married in Las Vegas was insufficient because there was no proof that jurors were aware that the age of consent to marry in Nevada is 16, and for the jury to draw that inference and to allow such would be improperly allowing a presumption based upon a presumption or an inference upon an inference.

http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2009/20090327/99380.htm

Double Jeopardy

Yeager v. United States, 555 U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 08-67, filed 06/18/09). In 2004, the United States charged three senior executives of Enron Corporation with multiple counts of money laundering, securities fraud, wire fraud, and insider trading. At trial, the jury acquitted the defendants on several charges, but could not agree on a verdict for the rest. The United States then recharged the defendants with several of the crimes on which the jury in the previous trial failed to reach a verdict. The defendants moved to dismiss the charges, arguing that collateral estoppel prevented the government from retrying them. The defendants based their motion on the fact that the jury acquitted the defendants on counts that shared common factual elements with the charges the jury failed to reach a verdict on. The district court denied the defendants' motion, and the Fifth Circuit upheld the district court's decision. The Supreme Court held that an apparent inconsistency between a jury’s verdict of acquittal on some counts and its failure to return a verdict on other counts does not affect the acquittals’ preclusive force under the Double Jeopardy Clause.http://topics.law.cornell.edu/supct/cert/08-67

Drugs

Abuelhawa v. United States, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 08-192, filed 05/26/09). Salman Khade Abuelhawa was convicted on felony drug charges under 21 U.S.C. § 843(b) for facilitating a drug deal. Abuelhawa bought a small amount of cocaine for personal use, and set up the transaction with his dealer using his cellular phone. The Fourth Circuit found that 21 U.S.C. § 843(b) applied to anyone that facilitated a drug offense with any communication device, regardless of whether the person was the drug dealer or the drug purchaser. The Supreme Court held that use of a cell phone or other communication device does not elevate a misdemeanor drug possession to a felony charge.

State v. Surowski, ___ Kan.App.2d ___, ___ P.3d ____ (No. 100,121, filed 07/24/2009). Possession of Lortab® (Hydrocodone), a narcotic, is a felony not a misdemeanor, therefore the district court improperly dismissed the charge against the defendant.

http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2009/20090717/100121.htm

State v. Beaver, ___ Kan.App.2d ___, ___ P.3d ____ (No. 100,241, filed 02/13/09). Police served a drug warrant at a house in Clay Center. Beaver just happened to be there as a social guest, and was detained at the back door, three to four feet from a cluttered kitchen table that contained some methamphetamine. There was no evidence that Beaver knew the drugs were there or intended to control them. The Court of Appeals affirmed dismissal of the charges, holding there was insufficient evidence to show constructive possession of the drugs.

http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2009/20090213/100241.htm

DUI

State v. Stegman, 41 Kan. App.2d 568, 203 P.3d 52 (2009). "Medical assistant was not qualified to draw blood at request of arresting officer, and thus, blood test results were inadmissible in trial for driving under influence (DUI), where stipulated facts did not show that assistant received training required pursuant to statute listing persons authorized to draw blood or that applicable medical protocol authorized assistant to perform blood withdrawal, and assistant was, by her own admission, not medical technician or phlebotomist." In response, the legislature amended K.S.A. 8-1001(c) to include the following: (1) A person licensed to practice medicine and surgery, licensed as a physician's assistant, or a person acting under the direction of any such licensed person; (2) a registered nurse or a licensed practical nurse; (3) any qualified medical technician, including, but not limited to, an emergency medical technician-intermediate or mobile intensive care technician, as those terms are defined in K.S.A. 65-6112, and amendments thereto, authorized by medical protocol or (4) a phlebotomist." So, unless it can be shown that the individual drawing blood meets the technician requirements listed in K.S.A. 65-6112 or is an actual phlebotomist, it should be a R.N. obtaining the blood sample.

Grabner v. Kansas Dept. of Revenue,___ P.3d ____ (table), 2009 WL 2030383 (unpublished, filed 07/10/09). In a case challenging lack of probable cause to arrest for DUI, Defendant's attempts to have the court focus on signs of impairment that he did not exhibit, while glossing over those signs of impairment he did exhibit, is unavailing. "This is the attempt to sustain a factual proposition merely by negative evidence. The fact that Grabner did not exhibit some signs of impairment of his physical and mental faculties does not imply that he did not exhibit other known psychomotor signs of impairment." See also United States v. Williams, 403 F.3d 1203, 1207 (10th Cir. 2005) (no need for officer to investigate alleged innocent explanations for defendant's actions); State v. Scott, 203 P.3d 1281, 2009 WL 929102 (table, unpublished)(no need to dally in the "fallacy of negative proof."); City of Great Bend v. Rowlands, 203 P.3d 1281, 2009 WL 929131 (table, unpublished)(same). [See also Phillips v. James, 422 F.3d 1075, 1080)(Fourth amendment does not require officers to use the least restrictive means to investigate a threat].

State v. Hardesty, ___ Kan.App.2d ___, ___ P.3d ____ (No. 100571, filed 08/14/2009). An officer saw Hardesty leave a bar, cross five lanes of traffic, and make an improper turn. The officer stopped Hardesty and found an open container, an open cooler with additional beers, a strong smell of an alcoholic beverage coming from the defendant, bloodshot eyes, slurred speech, an admission to drinking and poor performance on field sobriety tests. Hardesty also presented his deceased brother's ID card as his own. The Court of Appeals affirmed convictions for identity theft, DUI, driving while habitual, refusing a PBT and improper turn. Since the refusal of the PBT charge was tried to the court and not the jury, the court erred in allowing the prosecutor to present the refusal to the jury, but the error was harmless due to other overwhelming evidence of DUI.

http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2009/20090814/100571.htm

State v. Bradley, ___ Kan.App.2d ___, ___ P.3d ____ (No. 100,990, filed 06/12/09). Bradley's SUV collided with a semitrailer truck on I-70 during a snowstorm. The investigating deputy from Ellsworth County noted that Bradley smelled of an alcoholic beverage, had bloodshot eyes and fell out of her SUV when she opened the door. He asked her if she would take a breath test without giving her an implied consent advisory (ICA). She refused. After he finished at the scene, he transported Bradley to the law enforcement center, gave her the ICA, and again asked if she would take a breath test. She again refused. Bradley argued both refusals should be suppressed due to the deputy's failure to give an ICA before requesting the first test. The district court agreed and suppressed both refusals. The Court of Appeals affirmed as to the first refusal, but reversed as to the second, finding the ICA was given before the test was administered as required by K.S.A. 8-1001.

http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2009/20090612/100990.htm

State v. Cott, 288 Kan. 643, 645, 206 P.3d 514 (2009).. Trooper Wright observed Cott commit several traffic violations. He stopped her and subsequently arrested her for DUI. At the time of the stop, Cott's 4-year-old son was in the car with her, asleep in the front seat possibly in a seat belt, but not a car seat. Defendant tested 0.147. At the conclusion of the preliminary hearing, defense attorney Shepherd argued that the 30-day enhancement for having a child in the car in K.S.A. 2005 Supp. 8-1567(h) made the two charges against the defendant, DUI and endangering a child, multiplicitous. Thies agreed. The Court of Appeals and the Supreme Court reversed, holding that K.S.A. 2005 Supp. 8-1567(h) and K.S.A. 2005 Supp. 21-3608a(a)(1) are aimed at preventing different types of behavior and there is no evident legislative intent to preclude the State from holding the defendant responsible under both statutes when facts are present to support both crimes.

http://www.kscourts.org/Cases-and-Opinions/opinions/supct/2009/20090501/97955.htm

State v. Shadden, 40 Kan. App. 2d 1103, 199 P.3d 167 (2009). Reversed. See Shadden above.. Officers are not qualified to testify about the reliability of the NHTSA standards and FSTs performance in terms of percentages of guilt.

http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2009/20090116/97457.htm

Evidence

State v. Bratton, ___ Kan.App.2d ___, ___ P.3d ____ (No. 99521, filed 12/04/09 unpublished), 2009 WL 4639504. The Court of Appeals rejected the defendant's outrageous government conduct and entrapment defenses in an internet sting performed by Overland Park detectives. Donald Bratton began corresponding over the internet on a "sex" website with an under-cover Overland Park police detective who was posing as a woman interested in hooking up with men on the internet. The detective had a membership on the sex site that only allowed her to respond to contact with other website members, not initiate it. Bratton made contact with the detective about 20 times over the course of a three month period. They exchanged emails, some but not all of which were sexually suggestive. After they arranged a date to meet in person, the detective told Bratton, "I don’t remember if I told you or not, but my donation amount is 150 Washingtons for an hour of non-stop entertainment and fun." This was the first discussion of money in exchange for sex. Within 2 hours of the email, Bratton responded that he felt the donation sounded reasonable and he couldn't wait for them to meet. They arranged the date, time and place of their rendezvous and continued to discuss it over several more emails. When Bratton knocked on the hotel room door, the detective answered it, still posing as the "Belinda" that Bratton had been corresponding with on the internet. She asked if he had the money with him. He put it out on the table , they discussed condoms, and he was arrested. Bratton was charged and convicted of attempting to patronize a prostitute. Bratton first argued the "outrageous government conduct defense," which has been recognized in Kansas although it has never prevailed in a case. It states that "governmental participation in a criminal enterprise reaches an intolerable degree when it constitutes a denial of fundamental fairness, shocking to the universal sense of justice, in violation of the due process clause of the 5th Amendment to the U.S. Constitution." The factors used to identify outrageous government conduct are:

1.         the type of activity under investigation;

2.         whether the government instigates the criminal activity in question or whether it infiltrates a preexisting criminal enterprise;

3.         whether the government directs or controls the activities or merely acquiesces in their criminality; and

4.         the causal relationship between the challenged government conduct and the commission of the acts for which the defendant stands convicted.

The outrageous government conduct defense is an offshoot of the entrapment defense and intent and predisposition to commit the crime plays a role in the analysis. These are factual determinations for the fact finder. The Court of Appeals agreed that the predisposition analysis needed to focus on Bratton’s intent and expectations at the time he began corresponding with "Belinda." It opined that to measure predisposition later, after a government had engaged in outrageous conduct, could reward the government for any outrageous conduct that succeeded in creating a predisposition to commit a crime. The defendant argued that the mere fact that he was on a sex website and had contact with "Belinda" could not lead a rational factfinder to conclude he had a predisposition to patronize prostitutes on the site. However, the Court of Appeals found his use of the site to meet women to have sex with was material in the analysis. The very first cursory mention of prostitution by "Belinda" resulted in his prompt agreement to the terms. After money was discussed, he continued to push for a specific date and time. There was no hesitancy or reluctance or undue persuasion. Therefore, it held there was sufficient evidence for the trier of fact, the district court judge, to conclude that Bratton was predisposed to such behavior. Bratton also argued "entrapment." The entrapment defense is codified in Kansas at K.S.A. § 21-3210 and states that "A person is not guilty of a crime if his criminal conduct was induced or solicited by a public officer...for the purpose of obtaining evidence to prosecute such person, unless the public officer... merely afforded an opportunity or facility for committing the crime in furtherance of a criminal purpose originated by such person or co-conspirator." Once inducement by the government has been proven, the defendant’s previous intent or predisposition to commit the crime must be shown to rebut the entrapment defense. The Court of Appeals found that based on the facts of the case, a rational fact finder could find that Bratton was pre-disposed to hiring prostitutes for sex. The OPPD merely afforded the opportunity.

United States v. Robinson, ___ F.3d ___ (10th Cir. No. 08-3120, filed 10/20/09). Robinson was convicted and sentenced to 33 months in prison for being a felon in possession of a firearm after selling a gun to a confidential informant ("CI"). Six days before Robinson’s trial, the government’s star witness—the CI who purchased the gun from Robinson—was involuntarily committed to Osawatomie. The district court reviewed the CI’s medical files in camera but refused defense counsel access to them. It also precluded defense counsel from asking the CI any questions about his mental health history or his use of prescription medications. The Circuit ruled that refusal to provide Robinson access to the CI’s medical records contravened due process and that limitations on cross-examination of the CI violated the Sixth Amendment. The CI testified he only had "a little bit" of a drug problem and was not "regularly" violating his agreement with the ATF by using drugs. He also claimed his memory lapses were due solely to the passage of time. The medical records showed that the CI had been a heavy drug user since 2000 and had recently been abusing alcohol, cannibis, opioids, benzodiazepine, Valium, Klonopin, Darvocet, and Hydrocodone. The medical records also contain admissions by the CI that he had smoked a half-pound of marijuana in a single day shortly before trial and that he had been smoking up to a pound of marijuana per week. The jury would also have heard that the CI had a "long history of mental illness" starting in 2000, which included auditory hallucinations, seeing "things out through the window that are not really there," and "hearing voices telling him to do thing[s]." The Circuit concluded that if the jury had known these things, it might have rejected the CI's testimony and resulted in Robinson's acquittal. Notably, although the CI carried a digital recorder during the controlled buy of the weapon, the recording was "low-quality, interspersed with static, and revealed few details of the events that took place inside Robinson’s home." Even the government admitted it had "limited evidentiary value."

http://ca10.washburnlaw.edu/cases/2009/10/08-3120.pdf

State v. Laturner, 289 Kan. 727, 752, 218 P.3d 23 (2009). Lab test result showing that a substance is cocaine is testimonial under Crawford. The third and fourth sentences of K.S.A. 22-3437(3) are unconstitutional.

http://www.kscourts.org/Cases-and-Opinions/opinions/SupCt/2009/20091009/96086.pdf

State v. Leshay, ___ Kan. ___, ___ P.3d ___ (No. 99,725, filed 08/28/09). The district court dismissed possession of cocaine charges against Leshay because the KBI chemist was not present to testify at the preliminary hearing. The Supreme Court reversed, holding that K.S.A. 22-2902a, which allows for admission of laboratory reports at preliminary examinations, does not violate a Defendant's rights to confrontation under Crawford. Defendants at preliminary hearing do not have a full panoply of constitutional rights that are applicable at trial.

http://www.kscourts.org/Cases-and-Opinions/opinions/supct/2009/20090828/99725.htm

United States v. Collins, ___ F.3d ___ (10th Cir. No. 08-3119, filed 08/04/09). Admission of all detectives questions to defendant during an interview violated the hearsay rule, but the admission was harmless error, and the judge gave a curative instruction saying that the questions were only admitted to provide context and only the defendant's statements could be considered as evidence.

http://ca10.washburnlaw.edu/cases/2009/08/08-3119.pdf

Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S. Ct. 2527, 2541, 174 L. Ed. 2d 314 (2009). A state forensic analyst's laboratory report is testimonial and subject to Crawford. [NOTE: Kansas has already ruled that it is testimonial. State v. Laturner, 289 Kan. 727, 752, 218 P.3d 23 (2009)] Police stopped Luis Melendez-Diaz outside of a Boston area K-Mart on suspicion of drug possession. He was arrested with two other individuals and driven to the police station. On the way to the station, the police observed Melendez-Diaz and one of his cohorts making unusual movements in the back seat. They later conducted a search of the cruiser and found nineteen plastic bags containing a powdery substance, and $320 on the floor of the vehicle. The Massachusetts Department of Public Health's State Laboratory Institute tested the bags and found that they contained cocaine. A jury found Melendez-Diaz guilty of distributing and trafficking in cocaine. On appeal, Melendez-Diaz argued that the lab reports were "testimonial" in nature and that the Confrontation Clause of the Sixth Amendment required that he be allowed to cross-examine the analysts who prepared them. Massachusetts argued that the drug analysis reports were not testimonial within the meaning of the Confrontation Clause. Based on this ruling, analysts will be required to give in-court testimony about the weight and composition of drugs used as evidence in criminal trials.

District Attorney's Office v. Osborne, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 08-6, filed 06/18/09). A defendant has no constitutional right to test, years after the fact, genetic evidence found at the crime scene. William Osborne, was convicted of rape, kidnapping and assault in an attack on a prostitute in 1993. Osborne raped the victim at gunpoint, beat her with an axe handle, shot her in the head and left her for dead in a snow bank near the Anchorage International Airport. Osborne admitted his guilt under oath to the parole board in 2004. Another man also convicted in the attack has repeatedly identified Osborne as having participated in the crimes. Osborne requested testing on a condom and hairs found by investigators. Alaska does not have a law giving convicts access to DNA testing, unlike 43 other states and the federal government. The Circuit ruled in Osborne's favor, but the Supreme Court reversed, holding there is no constitutional right of access to evidence.

http://supct.law.cornell.edu/supct/html/08-6.ZO.html

Flores-Figueroa v. United States, 556 U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. filed 05/04/09). In order to establish the crime of aggravated identity theft under 18 U.S.C. 1028A(a)(1), the government must show that a defendant knew that a form of ID they used actually belonged to another person (as opposed to, for example, being just a randomly picked set of numbers for an SSN). The fact that the statute specifically uses the word "knowingly" in describing the criminal use of fake ID's played a key part in the decision. Ignacio Flores-Figueroa, a Mexican citizen, gave his employer a false name, birth date, and Social Security number, along with a counterfeit alien registration card. The SSN and the number on the registration card given to the employer in the year 2000 didn't belong to anyone, but in 2006 he gave his employer new cards that actually had numbers belonging to other people.

http://supct.law.cornell.edu/supct/html/08-108.ZO.html

State v. Ventris, 285 Kan. 595, 176 P.3d 920 (2008), reversed and remanded Kansas v. Ventris, 556 U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 07-1356, filed 04/29/09). Admission of the testimony of a under cover informant (cellmate) did not violate defendant's right to counsel under the Sixth Amendment. Ventris killed Hicks. The state used a jail plant and used his testimony in rebuttal to impeach Ventris's testimony. The Kansas Supreme Court held that statements obtained in violation of the Sixth Amendment are not admissible for any purpose. Cf. Harris v. New York, 401 U.S. 22, 91 S.Ct. 643, 28 L.Ed. 2d 1 (1971).

http://www.kscourts.org/Cases-and-Opinions/opinions/supct/2008/20080201/94002.htm

State v. Jones, ___ Kan.App.2d ___, ___ P.3d ____ (No. 97,976, filed 04/17/09). Jones and Briggs jacked two cars in two days in K.C. Mo. and Overland Park. The first victim's Stratus showed up in Overland Park the next day, and a witness saw the second victim get relieved of his Honda Accord at the Lighton Tower Office Building. A KCMO officer saw the Accord show up in KCMO and the occupants bailed on foot. The KCMO officer apprehended the driver, Briggs, who had keys to the Stratus on him, as well as the insurance and registration for the Accord. Officers found a silver BB gun in the Accord. Two days later, Det. Cohee interviewed Jones at the KCMO police department. Jones gave a post-Miranda confession to jacking the victim of the Accord. Briggs' fingerprints and/or DNA were found in both cars. Jones DNA was on the steering wheel of the Stratus and on a marijuana joint located therein. No latents or DNA in the Accord were positively identified to Jones. Jones was charged with aggravated robbery for jacking the Accord. Four months later, Jones wrote Cohee saying he withheld information and asking to speak to Cohee. Cohee didn't accept the invitation. At trial, Jones recanted, said Briggs and Prince D did the robberies, and alleged his confession was coerced. He tried to explain away his DNA in the stratus, saying he had just gotten a ride from Briggs and Prince D and smoked some dope in the car. He also alleged that Prince D and two other guys threatened him and robbed him the next day for talking to the police, and he wrote the letter to Cohee after his family had moved away and was no longer threatened. During deliberations, the jury asked "were there identified fingerprints on the gun." Cohee had testified that Briggs would admit his fingerprints were on the gun and no other fingerprints were present. Without waiting for a response from counsel, Judge Ruddick erroneously instructed the jury there was "no evidence was presented about fingerprints on the gun." The Court of Appeals held the judge's response was not only erroneous, but adverse to Jones defense and prejudicial and reversed the conviction.

http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2009/20090417/97976.htm

United States v. Hooks & Ferrell, ___ F.3d ___ (10th Cir. No. 08-7021 & 08-7026, filed 01/09/09). To prove constructive possession of a weapon, the government must show more than mere proximity. The government must also show knowledge of an in intent to control. Oklahoma officers stopped a pickup with dark tinted windows at a check lane. The contact officer looked in and saw what he thought was a revolver with a wooden handle lodged in the seat near the driver's (Hooks) right leg. Ferrell was in the passenger's seat. Officer later found two additional passengers in the back seat. Upon seeing the pistol handle, the officer yelled "gun" and the pickup sped away. During the chase, officers saw a dark colored shirt come out of the pickup. On the pursuit route about 3/4 mile back from the stop, officers found a black t-shirt. They also found an Uzi and several bullets. The next day, they found a .38 revolver about 15-20 feet from where they found the black shirt, and about 10 feet away from where they found the Uzi. Hooks was charged with possession of a .38, and Ferrell with possession of the Uzi. After the stop, Hooks and Ferrell were placed in the back seat of a police car with a video camera running (although pointed at the windshield), and Hooks made incriminating statements such as "They must have fo nd them straps and shit, we fixing to be gone," "I pray to God they ain't gonna find that shit." Ferrell didn't say much incriminating, but did tell Hooks on tape "As long as they don't find that revolver, cuz, you cool, 'cuase he states he thought it was a revolver. [inaudible] We can beat that shit in court." Ferrell also asked Hooks if his fingerprints were "on all that shit." Hooks indicated they might be. The jury convicted them both, but the 10th Circuit reversed as to Ferrell, finding the evidence was insufficient.

http://ca10.washburnlaw.edu/cases/2009/01/08-7021.pdf

State v. Bejarano, ___ Kan.App.2d ___, ___ P.3d ____ (No. 98.237, filed 02/20/09). In a prosecution for rape and aggravated indecent liberties with a child, a victim under the age of 13 testified by closed-circuit television rather than in person before the defendant in the courtroom. Because the trial court made all the findings required by K.S.A. 22-3434 before admitting this televised testimony, we hold the defendant's right to confront his accuser was not compromised and uphold his convictions.

http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2009/20090220/98237.htm

Interrogation

In re Boucher, No. 2:06-mj-91, 2009 WL 424718 (D. Vt. Feb. 19, 2009). the Government sought to compel a suspect to produce an unencrypted version of a drive on his laptop. Previously, the Government had reviewed portions of the encrypted drive with the suspect but was unable to reopen the drive once it was closed. During this initial viewing, law enforcement officers examined the encrypted and unencrypted portions of the suspect’s hard drive. After observing images of animated child pornography on the unencrypted portions of the hard drive, a Special Agent from Immigration and Custom’s Enforcement ("ICE") with experience and special training in recognizing child pornography was called. The ICE agent examined the computer and saw a file labeled "2yo getting raped during diaper change," but was unable to open it. After the suspect navigated to the encrypted portion of the hard drive, the ICE agent located and examined several videos or images that appeared to be child pornography. The district court concluded that the "foregone conclusion" doctrine applied under those facts because any testimonial value derived from the act of production was already known to the Government and therefore added nothing to its case.

State v. Schultz, ___ Kan. ___, 212 P.3d 150 (2009). Officers Rhodd and Kinnett violated the defendant's Fifth Amendment rights by not reading Miranda once custody had attached, thus his incriminating statements made afterwards are not admissible. However, their Fifth Amendment violation did not require suppression of marijuana resulting from a consent search pursuant to United States v. Patane, 542 U.S. 630 (2004). Officers performed a knock and talk at Schultz's apartment after a pest-control worker saw marijuana therein and the property manager told police that Schultz appeared to be "on something." As soon as Schultz opened the door, officers smelled burnt marijuana. Rhodd told Schultz he could either cooperate and have a respectful search done, or the officers could apply for a search warrant. Rhodd also asked the suspect to consider whether a warrant would issue after ticking off the witness statements, the odor of burnt marijuana, marijuana in plain view, and marijuana hidden from view, telling the suspect he should play the judge. The Supreme Court affirmed the district court on the Miranda violation issue, stating that once officers directed Schultz to be seated at the dining room table and denied his girlfriend permission to leave, custody had attached.

http://www.kscourts.org/Cases-and-Opinions/opinions/supct/2009/20090724/98727.htm

Montejo v. Louisiana, 556 U.S. 778, 129 S. Ct. 2079, 173 L. Ed. 2d 955 (2009)). Officers arrested Montejo for robbery and murder. Montejo waived his Miranda rights and spoke to detectives beginning late one afternoon through the early hours the next morning, continuously changing his story. Three days later Montejo had his first appearance before a judge in accordance with a statutory 72-hour hearing. Montejo remained silent, and the court appointed the indigent defender to represent him. Late that day, detectives asked Montejo to accompany them on a search for the murder weapon. During that journey, detectives again read Montejo his Miranda warnings and obtained a waiver. Montejo also wrote an inculpatory letter of apology to the victim's widow which was ultimately admitted during his trial. The Louisiana Supreme Court ruled that Michigan v. Jackson, 475 U.S. 625 (1986), only applied if a defendant asserted his right to counsel, and Montejo had stood silent. In Jackson, the Court held that once indigent defendants request that the state appoint counsel to represent them, their waivers of their right to counsel during subsequent police-initiated interrogations are void. Reversing, the United States Supreme Court overruled Michigan v. Jackson. It reasoned that requiring an "initial invocation" of the right to counsel in order to trigger the Jackson presumption might work in states that require an indigent defendant formally to request counsel before an appointment is made, but not in more than half the states (like Kansas) that appoint counsel without request from the defendant. Finding the protections of Miranda-Edwards-Minnick offered sufficient protection against police badgering, the majority saw no continuing need for Jackson. However, it remanded the case for consideration of whether Montejo's waiver was knowing, intelligent and voluntary.

http://supct.law.cornell.edu/supct/html/07-1529.ZO.html

State v. Ransom, ___ Kan. ___, ___ P.3d ___ (No. 99281, filed 05/19/09). There was no need to re-Mirandize the suspect during a 3.5 hour total police interrogation involving three breaks. Additionally, the evidence showed that Ransom made a knowing, voluntary confession even though he later claimed that he was under the influence of Ecstasy at the time.

People v. Mays, ___ Cal.App. ___ (No. C057099, 3d District, filed 05/08/09 partially published). Officers use of tactical deception (using a fake lie detector test) did not yield an involuntary admission by the suspect in a homicide case. Defendant initially denied being present at the homicide and insisted on taking a polygraph. No polygrapher was available, so detectives purported to wire up defendant to a fake polygraph machine, showed him a fake chart, and suggested he was lying. Defendant eventually admitted he was present, but denied he was the shooter. His admission was admitted into evidence. The Court held it was not involuntary despite the tactical deception.

http://caselaw.lp.findlaw.com/data2/californiastatecases/c057099.pdf

Corely v. United States, 556 U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 07-10441, filed 04/06/09). An unreasonable delay in presenting an arrestee before the court for arraignment may impact the admissibility of a confession particularly where the delay is not due to transportation and distance to court issues. Johnnie Corley was suspected of robbing a bank in Norristown, Pennsylvania. After federal agents learned that Corley was subject to arrest on an unrelated local matter, some federal and state officers went together to execute the state warrant on September 17, 2003, and found him just as he was pulling out of a driveway in his car. Corley nearly ran over one officer, then jumped out of the car, pushed the officer down, and ran. The agents gave chase and caught and arrested him for assaulting a federal officer. The arrest occurred about 8 a.m. FBI agents first kept Corley at a local police station while they questioned residents near the place he was captured. Around 11:45 a.m. they took him to a Philadelphia hospital to treat a minor cut on his hand that he got during the chase. At 3:30 p.m. the agents took him from the hospital to the Philadelphia FBI office and told him that he was a suspect in the Norristown bank robbery. Though the office was in the same building as the chambers of the nearest magistrate judges, the agents did not bring Corley before a magistrate, but questioned him instead, in hopes of getting a confession. The agents' repeated arguments sold Corley on the benefits of cooperating with the Government, and he signed a form waiving his Miranda rights. At 5:27 p.m., some 9.5 hours after his arrest, Corley began an oral confession that he robbed the bank, and spoke on in this vein until about 6:30, when agents asked him to put it all in writing. Corley said he was tired and wanted a break, so the agents decided to hold him overnight and take the written statement the next morning. At 10:30 a.m. on September 18 they began the interrogation again, which ended when Corley signed a written confession. He was finally presented to a magistrate at 1:30 p.m. that day, 29.5 hours after his arrest. Corley was charged with bank robbery. He sought to have his confession suppressed based upon the federal statute requiring "presentment" without unnecessary delay. The Supreme Court ruled that 18 U.S.C.§3501 modified McNabb v. US, 318 U.S. 332 (1943), and Mallory v. US, 354 U.S. 449 (1957), without supplanting it, and under the rule as revised by §3501(c), a district court with a suppression claim must find whether the defendant confessed within six hours of arrest (unless a longer delay was 'reasonable considering the means of transportation and the distance to be traveled to the nearest available [magistrate]'). If the confession came within that period, it is admissible, subject to the other Rules of Evidence, so long as it was 'made voluntarily and . . . the weight to be given [it] is left to the jury. 'If the confession occurred before presentment and beyond six hours, however, the court must decide whether delaying that long was unreasonable or unnecessary under the McNabb-Mallory cases, and if it was, the confession is to be suppressed. In this case, the Third Circuit did not apply this rule and in consequence never conclusively determined whether Corley's oral confession 'should be treated as having been made within six hours of arrest, nor did the Circuit consider the justifiability of any delay beyond six hours if the oral confession should be treated as given outside the six-hour window. The Court remanded the case for consideration of those issues in the first instance.

http://supct.law.cornell.edu/supct/html/7-10441.ZO.html

State v. Gant, ___ Kan. ___, ___ P.3d ___ (No. 98,026, filed 01/30/09). While being arrested for felony murder, defendant yelled at his girlfriend that he loved her, he loved his children, and that she needed to call a lawyer and another individual. Detectives interviewing him at the station read him Miranda warnings and Gant waived his rights and made incriminating statements. Conceding that he never told the police he wanted to speak with a lawyer, Gant nontheless alleged on appeal that police violated his Miranda rights. The Supreme Court disagreed.

Firearms

State v. Toler, ___ Kan. ___, ___ P.3d ___ (No. 99,236, filed 05/01/09). OPPD Officer Heavin found Toler on the property of Shawnee Mission West High School one morning at 4:25 a.m. allowing her dog to run loose on school grounds. Heavin approached to ask about the fact that her dog was not on a leash and saw a handgun case that contained an unloaded Beretta 9 mm handgun. Judge Davis acquitted Defendant of having a gun on school property and the State appealed on a question reserved. The Court of Appeals sustained the appeal, holding that under the plain language of K.S.A. 21-4204(a)(5), a person may be found guilty of criminal possession of a firearm on school property, even when school is not in session or children are not present on the school property at the time the offense is committed.

http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2009/20090501/99236.htm

Dean v. United States, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 08-5274, filed 04/29/09). Petitioner Christopher Michael Dean was convicted for a bank robbery in which he fired, probably by accident, a pistol. In addition to his sentence for the bank robbery, Dean was sentenced under 18 U.S.C. § 924(c)(1)(A)(iii), which imposes a ten-year mandatory minimum sentence for the discharge of a firearm during a violent crime. The Supreme Court held the sentence enhancement under § 924(c)(1)(A)(iii) applies even if the discharge was accidental.

http://www.law.cornell.edu/supct/html/08-5274.ZO.html

City of New York, et al. v. Beretta U.S.A. Corp., et al., ___ F.3d ___ (2d Cir. Nos. 05-6942, 05-6964, 06-3692, 06-3695, filed 04/30/08). cert. denied ___ U.S. ___ (03/09/09). The U.S. Supreme Court turned away the City of New York's latest attempts at holding the firearms industry legally responsible for violence caused by the marketing of handguns that end up being sold and used unlawfully. The lawsuits, originally filed in 2000 against gun makers like Beretta, Smith & Wesson, and Colt, sought to hold the companies liable under a New York "public nuisance" law. The City of New York basically alleged that the gun makers created a dangerous condition that affected the safety of a large number of New Yorkers, by letting handguns fall into the wrong hands through illegal and private sales. A federal appeals court threw out the claims, ruling that a 2005 law shields gun makers from such lawsuits, and the U.S. Supreme Court declined to disturb that decision. According to the Associated Press, the lawsuit claimed "manufacturers let handguns reach illegal markets at gun shows in which non-licensed people can sell to other private citizens; through private sales in which background checks are not required; by oversupplying markets where gun regulations are lax, and by having poor overall security."

http://origin.www.supremecourtus.gov/docket/08-530.htm

United States v. Hayes, 522 U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 07-608, filed 02/24/09). The Fourth Circuit held that the names of thousands of dangerous abusers need to be purged from the federal Brady background check system. The Court narrowly construed the Lautenberg Amendment to bar gun possession only by abusers convicted of laws specifically barring domestic violence, rather than anyone convicted of domestic violence under general laws, such as laws against battery. The Circuit's ruling is contrary to the rulings of nine other Federal Circuit Courts. More than half of the states do not have laws specifically barring violence against spouses or family members, but instead charge abusers under general battery laws. The United States Supreme Court reversed, holding that no specific domestic relationship need be specified by the state law. In this case, Hayes was found in possession of a firearm after being convicted 10 years earlier of battery against a woman that was his wife at the time. The United States Supreme Court held "the domestic relationship, although it must be established beyond a reasonable doubt in a § 922(g)(9) firearms possession prosecution, need not be a defining element of the predicate offense."

ConocoPhillips v. Henry, ___ F.3d ___ (10th Cir. No. 07-5166, filed 02/18/09). Appeal from 520 F. Supp.2d 1282 (N.D. Ok. 2007). The National Rifle Association has made it a major priority to pass state laws prohibiting employers from barring guns from workplaces, starting with a ban on prohibitions in company parking lots. Oklahoma was the first state to pass one of these laws, in 2005. Shortly thereafter, a consortium of companies, headed by ConocoPhillips, filed suit in federal court arguing the law is unconstitutional as a violation of property rights and the Occupational Safety and Health Act’s (OSHA) general duty clause, which requires employers in the U.S. to provide safe workplaces. On October 4, 2007, a federal court in Oklahoma permanently enjoined Oklahoma’s guns-at-work law from taking effect. The same court had issued a temporary restraining order in a previous ruling. The court held that the federal obligation to provide a safe workplace for employees under OSHA's general duty clause must trump a state law that threatens workplace safety. "In fact, the Court can imagine no other 'condition' on company property that more significantly increases the risk of death or serious bodily harm to employees in a situation involving workplace violence [than the presence of firearms.]" Courts in Utah and Oklahoma have also found there is no right to bring guns to work. The court rejected the companies’ property rights arguments, however. The Tenth Circuit reversed.

First Amendment

Travis v. Park City Mun. Corp., ___ F.3d ___ (10th Cir. No. 08-4115, filed 05/13/09). In an action claiming that Defendant-City's requirement that Plaintiff obtain a permit to display his art in a park violated the First Amendment, summary judgment for Defendant is affirmed, where the regulation was content-neutral and did not burden more speech than was necessary to serve legitimate government interests.

http://ca10.washburnlaw.edu/cases/2009/05/08-4115.pdf

Christensen v. Park City Municipal Corporation, ___ F.3d ___ (10th Cir. No. 07-4273, filed 02/06/2009). Officers of Park City, Utah, enforced a municipal ordinance prohibiting the sale of goods on outdoor city property against an artist selling his original work in a city park. The artist claimed a First Amendment violation. The district court dismissed his claims against the city and the individual officers. The Tenth Circuit upheld qualified immunity for the individual officers, noting that it was not clearly established that enforcing such an ordinance amounted to a constitutional violation. The Tenth Circuit reversed on the claim against the city and remanded for further proceedings to determine whether there was a constitutional violation.

http://ca10.washburnlaw.edu/cases/2009/02/07-4273.pdf

Hackbart v. City of Pittsburgh, ___ F.Supp. ___ (No. 2:07cv157, U.S.D.C. District of Pennsylvania, filed 03/23/09). Hackbart was attempting to pull into a parking place. A vehicle pulled in behind him and blocked his entry into the space. Hackbart stuck his hand out of the window and extended his middle finger to the other driver. A Sergeant driving by yelled for Hackbart not to flip off the other driver, causing Hackbart to flip a bird towards the Sergeant. The Sergeant cited Hackbart for disorderly conduct. The court held that flipping the bird was protected First Amendment activity and the Sergeant's act of citing him was retaliation for exercising First Amendment rights. The Court denied the Sergeant's motion for summary judgment and granted Hackbart's. Furthermore, there was sufficient evidence in the record that Pittsburgh police had a policy of citing people for disorderly conduct under such circumstances that Hackbart's failure to train, negligent supervision and deliberate indifference should go to the jury.

Pleasant Grove City, Utah v. Summum, 555 U.S. 460, 129 S.Ct. 1125, 172 L.Ed.2d 853 (2009). Summum cannot make a Utah city put up a monument containing "the Seven Aphorisms of SUMMUM," a granite marker that the group donated to a public park. Pleasant Grove's park was home to other monuments donated by private entitities, including the 10 commandments donated by the Eagles club. The Court indicated that there's a difference between showing up at a park and speaking your mind (or carrying around a banner), on one hand, and forcing a city to plant a monument, on the other. It its own words: "Speakers, no matter how long-winded, eventually come to the end of their remarks; persons distributing leaflets and carrying signs at some point tire and go home; monuments, however, endure." "The placement of a permanent monument in a public park is best viewed as a form of government speech and is therefore not subject to scrutiny under the Free Speech Clause."

http://supct.law.cornell.edu/supct/html/07-665.ZO.html

Video Software Dealers Ass'n. v. Schwarzenegger, ___ F.3d ___ (9th Cir. No. 07-16620, filed 02/20/09). California passed a law stating that a person "may not sell or rent a video game that has been labeled a violent video game to a minor." The bill defined violence as killing, maiming, dismembering, etc. The law also requires labeling if the state deems the game violent. California alleged its interests in passing the act were to prevent violent, aggressive and antisocial behavior and to prevent psychological or neurological harm to minors. The Ninth Circuit, strictly construing the content-based law, struck it down. It held that due to flaws in the underlying studies, the state failed to prove a compelling state interest in preventing psychological or neurological harm. Even assuming the state met its burden, the Circuit held the state failed to prove the act was narrowly drawn and that less burdensome alternatives could not achieve its objectives.

http://www.ca9.uscourts.gov/datastore/opinions/2009/02/20/0716620.pdf

Christensen v. Park City Mun. Corp., ___ F.3d ___ (10th Cir. No. 07-4273 filed 02/06/09). After several warnings that he could not sell his paintings in a city park without a license, defendant was arrested and jailed for three days for violating a city ordinance. In a case involving the enforcement against a visual artist selling his own work of municipal ordinances forbidding any person, with certain exceptions, from selling goods or merchandise on the streets, in the parks, or on other city property, dismissal of claims against city and individual defendants is affirmed in part and reversed in part where: 1) the district court correctly held that individual defendants were entitled to qualified immunity because they did not violate a constitutional right that was clearly established at the time of their action; but 2) plaintiffs claims of municipal liability required a remand for further determination of the proper constitutional principles and determination of the facts, if necessary. Applying Pearson v. Callahan, the court declined to answer the First Amendment question as to whether a First Amendment right exists to sell art in a public forum without a license, stating:

This case is a prime example of when the discretion to avoid the first half of the Saucier two-step should be exercised. To attempt to answer Saucier’s first question would require us to opine on an open and significant issue of constitutional law on an inadequate record, without benefit either of a district court holding or of relevant briefing, even though the issue would have no effect on the outcome of the case. We therefore exercise our newfound discretion and move on.

Turning to the issue of whether the law was clearly established and whether defendants should have know it, the court said, "Police officers are not constitutional lawyers, and they should not have to fear personal damages liability when they enforce the plain terms of an ordinance that has not been challenged in court, let alone overturned, unless its unconstitutionality is patent."

http://ca10.washburnlaw.edu/cases/2009/02/07-4273.pdf

Jury Instructions

State v. Hendrix, ___ Kan. ___, ___ P.3d ___ (No. filed 10/23/09). Defendant was not entitled to a self-defense instruction where he used no actual force. Defendant and his sister were visiting their mom in the hospital when an argument broke out. Under defendant's theory, she approached him aggressively and he threatened to "break her neck." According to the victim, Defendant pulled a knife on her and threatened to kill her. Both parties agreed on the complete absence of physical force by either. Defendant requested PIK Crim. 3d 54.17 (self defense) in his prosecution for criminal threat. The Supreme Court held that the self defense instruction should be given only where the defendant uses actual, not just threatened force. Davis and Luckert dissent.

http://www.kscourts.org/Cases-and-Opinions/opinions/SupCt/2009/20091023/97323.pdf

State v. Williams, ___ Kan.App.2d ___, ___ P.3d ____ (No. 100,129, filed 09/25/09). When a defendant's defense is jury nullification, it is not reversible error to give the no-sympathy instruction - PIK Criminal 3d 51.07: "'You must consider this case without favoritism or sympathy for or against either party. Neither sympathy nor prejudice should influence you.'"

http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2009/20090925/100129.htm

State v. Davison, ___ Kan.App.2d ___, ___ P.3d ____ (No. 99,229, filed 01/30/09). Giving a version of PIK Crim 3d 59.67-B on theft detection devices prior to its revision to include the specific intent requirement from K.S.A. 21-3764(d) is reversible error.

Miscellanous

Stewart v. Board of County Commissioners of Garfield County, Utah, ___ F.3d ___ (10th Cir. No. 07-4200 & 07-4203, filed 02/02/09). Counties filed FOIA requests with the Bureau of Land Management and the Department of the Interior regarding grazing permits. The government denied requests for emails and a consultant's report under 5 U.S.C. § 552(b)(5) saying the emails would require review of 600 back-up tapes, and the consultant's report was protected by the deliberative process privilege. The cost estimate to provide the emails was over $280,000, and the government refused to waive the fee. The Court upheld the denial of the fee waiver, as well as withholding of the consultant's report. They determined the cost was exorbitant and there was no showing the requested emails would "contribute significantly to public understanding."

http://ca10.washburnlaw.edu/cases/2009/02/07-4200.pdf

Open Records

Lake v. Phoenix, 222 Ariz. 547, 218 P.3d 1004 (2009). Integral or embedded metadata captured within a document is an open record and must be disclosed.

Search and Seizure

United States v. Vazquez, 555 F.3d 923, 930 (10th Cir. 2009). "we have upheld the legality of such a sniff during a lawful detention when . . . (1) the dog's leap into the car was instinctual rather than orchestrated and (2) the officers did not ask the driver to open the point of entry, such as a hatchback or window, used by the dog." See also United States v. Stone, 866 F.2d 359, 364 (10th Cir. 1989), where the court concluded that even though a drug detection dog jumped into a car through an open hatchback, the "dog's instinctive actions d[o] not violate the Fourth Amendment" because the police did not ask the defendant to open the hatchback nor did the police encourage the dog to jump into the car.

United States v. Villa, ___ F.3d ___ (10th Cir. No. 08-8100, filed 12/29/09). The district court properly denied the defendant's motion to suppress evidence based on unreasonable continued detention. A Wyoming trooper stopped Villa's car East of Cheyenne for speeding. He approached on the passenger side and spoke to Ms. Davis. Villa and Davis said they were headed to Minnesota to visit family. (Villa later said Davis's family). The trooper described Villa as nervous, and Davis as "overly friendly." Villa had a California DL, but the registration and insurance documents had two different Nevada addresses and were only two weeks old. The trooper returned to his car and ran the information. All came back clear. The trooper then requested Villa to join him in the patrol car and asked her more questions. While filling out a warning ticket, Villa said her boyfriend lived in Nevada and that is why the car was registered there. Villa could not say which city in Minnesota they were headed to. The trooper served her the warning and returned her documents, telling her she was free to go. As she was getting out of the patrol car, the trooper asked permission to ask a few more questions. Villa agreed, and stayed in the car. In response to a Villa statement, the trooper remarked that it was a long trip for a two-day visit. Villa then said she may fly back. The trooper told her to remain in the car while he asked Davis some questions. Instead, Villa followed the trooper out of the car. Villa refused consent to search the car. The trooper requested a canine that arrived 11 minutes later and alerted on the car. The trooper found two packages of methamphetamine under a panel. Villa also possessed a gun that the trooper discovered in his back seat two months later. Villa was convicted and sentenced to a 15-year controlling sentence. Villa argued that she should have been released as soon as she and her documents came back clear. The Circuit disagreed, finding detention was justified until the trooper served the warning and returned Villa's documents, and the encounter was consensual until detention started. Further, detention was supported by reasonable suspicion based on Villa's and Davis's jacked up story.

Ohio v. Antwaun Smith, ___ Ohio ___ (filed 12/15/09, a 5-4 decision). Police officers must obtain a search warrant before searching the contents of a suspect's cell phone unless their safety is in danger. Smith was arrested on drug charges after he answered a cell phone call from a crack cocaine user acting as a police informant. Officers took Smith's cell phone when he was arrested and, acting without a warrant and without his consent, searched it. They found a call history and stored numbers that showed Smith had previously been in contact with the drug user. Smith argued that the evidence obtained through the cell phone search was inadmissible because it violated the constitutional ban on unreasonable search and seizure. The Court agreed, the majority concluding that a cell phone was akin to a closed container. A dissenting justice said the majority "needlessly theorized" about what a cell phone is capable of doing and the data it can store.

State v. Chavez-Zbarra, 42 Kan.App.2d 1074, 221 P.3d 606 (2009). A Barton County deputy stopped a vehicle when it crossed the center line on a two-lane highway. The driver turned out to be DUI. The district court held the stop was illegal based on State v. Ross, 37 Kan. App. 2d 126, 149 P.3d 876, rev. denied 284 Kan. 950 (2007), and suppressed all the evidence. The Court of Appeals reversed, holding that K.S.A. 8-1514 requires driving on the right half of the roadway, that it is a strict liability offense unlike K.S.A. 8-1522, and was a valid reason to stop the vehicle.

Michigan v. Fisher, 556 U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 09-91, per curium, 12/07/09), 2009 USLEXIS 8773 (2009). In a somewhat unusual procedure, the Supreme Court summarily granted certiorari, reversed a judgment and remanded a case, all without briefing and argument. Michigan officers responded to a disturbance complaint. A citizen approached and advised police a man was "going crazy." At the house they were directed to, officers saw a pickup truck in the driveway with its front smashed, damaged fenceposts along the side of the property, and three broken house windows, the glass still on the ground outside. The officers also noticed blood on the hood of the pickup and on clothes inside of it, as well as on one of the doors to the house. Through a window, the officers could see Mr. Fisher screaming and throwing things. The back door was locked, and a couch had been placed to block the front door. Fisher refused to answer knocks at the door. Officers saw Fisher was cut and bleeding. They asked him whether he needed medical attention. Fisher ignored these questions and demanded, with accompanying profanity, that the officers go to get a search warrant. Officers entered the residence, and Fisher greeted them with a long gun. The district court suppressed the evidence against Fisher, who was charged with assault with a dangerous weapon and possession of a firearm during the commission of a felony. Reversing, the Supreme Court stated:


"It was error for the Michigan Court of Appeals to replace that objective inquiry into appearances with its hindsight determination that there was in fact no emergency. It does not meet the needs of law enforcement or the demands of public safety to require officers to walk away from a situation like the one they encountered here. Only when an apparent threat has become an actual harm can officers rule out innocuous explanations for ominous circumstances. But "[t]he role of a peace officer includes preventing violence and restoring order, not simply rendering first aid to casualties." Brigham City, [v. Stewart, 547 U. S. 398, 126 S.Ct. 1943 (2006)] supra, at 406. It sufficed to invoke the emergency aid exception that it was reasonable to believe that Fisher had hurt himself (albeit nonfatally) and needed treatment that in his rage he was unable to provide, or that Fisher was about to hurt, or had already hurt, someone else. The Michigan Court of Appeals required more than what the Fourth Amendment demands.


Justice Stevens and Sotomayor dissented, saying the Supreme Court should not second-guess the state court judges.

United States v. Pena-Montes, ___ F.3d ___ (10th Cir. No. 08-2169, filed 12/07/09). An Albuquerque police officer saw a GMC Yukon traveling without an apparent tag and stopped the vehicle. As the officer approached, he saw a dealer plate displayed in the rear window. The officer engaged the driver and asked for his license, registration and proof of insurance. The driver produced a license, but did not have registration, a bill of sale or proof of insurance. The officer thought the vehicle might be stolen. After being advised the driver had a handgun in the vehicle, the officer removed the driver and passenger while he checked with dispatch about the registration. The officer patted down driver and passenger after learning the vehicle had not been reported stolen. The passenger had no ID and the name he used did not show up in the Arizona DL database. The passenger then gave a different birth date and SSN than he had previously. Eventually, the officer discovered the passenger was an alien and a convicted felon. The passenger filed a motion to suppress alleging he had been illegally detained. The Circuit agreed. It found the stop justified at its inception based on the officer's mistake of fact, but disagreed with the government's assertion that further detention was warranted to investigate possible misuse of the dealer plate. The law did not restrict the use of this type of plate, and the officer's mistaken conclusion that such plates are only generally used during banker's hours when dealerships are open did not warrant further detention and violated the applicable scope fo the stop.

State v. Knight, 42 Kan.App.2d 893, 218 P.3d 1177 (No. 100167, filed 11/06/09, modified after remand 10/08/10). A trooper saw Knight's car on I-35 at around 11:24 p.m. cross the solid line on the left side and weave within its own lane. The trooper believed that the driver might be under the influence of drugs and/or alcohol and stopped the car. The Court of Appeals agreed the state failed to present adequate proof of a public safety stop, but held that observation of Knight's car weaving in and out of lanes without signaling and his car's weaving within its proper lane of travel, standing alone, created sufficient reasonable suspicion for the stop. The case also rejects Knight's argument that the prohibition on concealed carry violates the 2d Amendment under McDonald v. Chicago, 561 U.S. ___, 130 S.Ct. 3020 (2010) and District of Columbia v. Heller, 554 U.S. 570, 171 L.Ed.2d 637, 128 S.Ct. 2783 (2008).

State v. Sanchez-Loredo, 42 Kan.App.2d 1023, 220 P.3d 374 (2009), affirmed, (No. 101912 filed 03/23/12). Hutchinson police had investigated the suspect for methamphetamine distribution approximately two months before stopping her car, and had informant information that she frequently drove to Dodge City to buy meth. Officers followed her there, saw the vehicle park behind an auto detailing shop, and saw defendant go in and remain for about 10 minutes. The vehicle drove in a manner that one of the officers thought indicated the driver was attempting to locate any tails. While driving back to Hutchinson, the officers relayed information regarding a possible search warrant to an ADA. After the car entered Reno county, the officers stopped it. A drug-sniffing canine did not alert on the car, but officers obtained a warrant and searched the car, finding a pound of meth in the glove box, and paraphernalia. The district court suppressed the evidence, finding no exigent circumstances. The Court of Appeals reversed, again holding that an automobile search provides its own exigent circumstances when there is probable cause to believe contraband is in the vehicle.

Harman v. Pollock, ___ F.3d ___ (10th Cir. No. 08-4068, filed 11/18/09)(Harman II). The district court property granted defendants qualified immunity after remand from Harman I, 446 F.3d 1069 (10th Cir. 2006). Utah police had a warrant for 44 West 2700 South in Salt Lake, including its detached garage. The detached garage was actually an apartment at 44 ½ West 2700 South, and plaintiffs Harman and her boyfriend Overton lived there. After the SERT team entered, they quickly realized they were not in a garage, but saw marijuana in plain view. Thinking the apartment was a crash pad for the main house, they detained the occupants for about two hours and searched the apartment twice. After interviews, they realized the apartment and its occupants had no connection to the main house. The majority concluded that based on the officer's mistaken belief, the entry and plain view search was reasonable and, although the warrant was overbroad, based on their mistaken beliefs the officers did not violate Maryland v. Garrison, 480 U.S. 79 (1987).

State v. Isaac, 2009 WL 1858754 (Kan.App. 2009). A cell phone owner's expectation of privacy is no different from the expectation of privacy to data stored in a computer.

State v. Murphy, 42 Kan. App. 2d 933, 219 P.3d 1223 (2009), affirmed ___ Kan. ___ (No. 100178, filed 02/01/13). In yet another "Columbo Pivot" case, a majority of this Court of Appeals panel demonstrates understanding and application of the totality of the circumstances test on determining whether a police-citizen encounter was consensual or an illegal detention. An officer stopped defendant for speeding 79 in a 70 in Geary County. The officer wrote the defendant a warning ticket, returned his document, and told him he was free to go. The defendant shook the officer's hand, apologized for speeding and began to walk away. After a Columbo Pivot, the officer said something to the effect of, "By the way, do you have any illegal contraband, drugs, alcohol or weapons in the car?" The defendant denied having those things, and gave consent to search (after consenting to a pat-down). The officer found cocaine and paraphernalia in the vehicle. The defendant claimed his consent was coerced during an illegal detention because the officer did not ask him for permission to ask further questions, and the officer still had his emergency lights on. Rejecting this argument, the majority concluded that a reasonable person would feel free to leave under the circumstances. Applying Thompson, the majority concluded the following voluntary factors outweighed the detention factors: (1) returning documents; (2) telling the defendant he was free to go, (3) physical disengagement; (4) only one officer present; (5) no display of a weapon or physical touching and (6) the encounter occurred in a public place. Defendant also claimed that admission of the lab report at trial without the chemist's testimony violated Crawford. The Court rejected this claim as well, finding the state had proffered the lab report on October 5, 2006, but defendant never objected until two days before trial, on April 2, 2007. Thus defendant waived any objection under the notice and demand statute, K.S.A. 22-3437(3) and State v. Laturner. Judge Greene dissented, finding a reasonable person would not feel free to leave. Focusing on the phrase "By the way," he said it indicates an afterthought and suggests a need to reengage the prior conversation to deal with an unfinished issue. He also questions the direction of jurisprudence, saying it encourages suspects to disrespect law enforcement. Greene stated that a suspect waives his rights if he does anything short of saying as little as possible, answering no questions until commanded to do so, declining cooperation and turning and walking away, which may seem "quite rude and disrespectful."

State v. Morlock, 289 Kan. 980, 218 P.3d 801 (No. 97,447, filed 11/06/09), reversing 40 Kan.App.2d 216, 190 P.3d 1002 (2008). The Kansas Supreme Court reversed the Court of Appeals on whether consent was voluntary due to illegal detention. The Court of Appeals held that some questions to a passenger during a traffic stop made it an illegal detention. In magical language, the Supreme Court stated:


We hold that Deputy Cocking's questions about the van occupants' travel plans did not exceed the acceptable boundaries of the traffic stop. We further hold that Cocking's taking of Morlock's driver's license to his patrol vehicle and using it to run a warrants check on the vehicle computer was justified by his reasonable suspicion, allowing an extension of the traffic stop. Accordingly, we do not address whether any taint was attenuated by Morlock's later consent to search.


We reverse the Court of Appeals and affirm the district court.

The Court of Appeals had ruled a Deputy violated a passenger's Fourth Amendment rights by inquires about travel plans and checking the passenger for warrants, and those questions tainted the later voluntary consent to search that yielded 113 pound of marijuana. The deputy stopped a van bearing Arizona plates because it twice changed lanes without signaling. The driver, a 16-year old male, was extremely nervous. The passenger looked straight ahead during the deputy's encounter with the son and would not make eye contact with the deputy. The deputy had the driver step out, and asked him Where he was coming from, how long he'd been there and the purpose of the trip. The driver said they came from Phoenix, had been there a couple of days and went to see his dad's (the passenger's) girlfriend. The driver also stated his dad rented the van. The deputy then approached the passenger, asked for a copy of the rental agreement and asked the passenger for ID. While the passenger was looking for the rental agreement, the deputy asked him the same questions he'd asked the driver. The passenger stated they were traveling from Phoenix to Kansas City, they had been in Phoenix for 2 days, and they went there to meet a woman he had met on the internet, but they never made contact with her. The passenger produced both the rental agreement and his ID. The rental agreement indicated the van was rented in Tucson, not Phoenix. The deputy asked why they flew to Phoenix but were driving back in a rented van. The passenger stated they didn't have enough money for a return flight. The deputy noticed four duffel bags in the cargo area of the van, which he thought was unusually large for a two-day trip. Neither the driver nor the passenger had warrants. The deputy returned the documents on the passenger side of the van, issued a warning citation, then said "have a nice day," and took a couple steps away. The deputy then asked if he could ask some questions. The passenger consented, and eventually consented to a search. The Court of Appeals held it was ok to ask where the van's occupants were coming from, but held that questions regarding the length of stay and purpose of the trip were not reasonably related to the purpose of the stop. While it was ok to ask for the rental agreement and about the Tucson/Phoenix discrepancy, the other questions were designed to probe into the passenger's personal business in the hope of uncovering suspicious activity. The Court of Appeals also held that the warrant check on the passenger violated State v. Damm, 246 Kan. 220, 787 P.2d 1105 (1990), and the impermissible extension of the scope and duration tainted the passenger's later consent. Thus, it held that all the evidence must be suppressed. Judge Leben wrote a well-reasoned dissent indicating that Illinois v. Harris, 543 U.S. 1135 (2005) and Illinois v. Caballes, 543 U.S. 405 both indicate that an officer can ask for a passenger's ID and run them for warrants. He also pointed out the total time of the traffic stop was only 12 minutes, and would have held the officer's actions were reasonable. But see State v. Jones.

United States v. Rivera, 570 F.34d 1009 (8th Cir. 2009). Questioning of driver about purposes of his trip and how he would contact his wife once he got to Memphis were permissible incidents of a routine traffic stop.

State v. Brittingham, ___ Kan.App.2d ___, ___ P.3d ____ (No. 100,888, filed 10/30/09). Two public housing authority employees entered defendant's apartment to check for damage from a drainage problem. One of the employees noticed two unresponsive people inside and called 911. The police responded, and eventually the persons awoke and declined medical treatment. The officer noticed drugs and paraphernalia in plain view, and received incriminating, volunteered statements from the defendant. The Court of Appeals found no error in denying a motion to suppress, holding the public housing employees were not acting as agents of the police, and police entry into the residence was a valid emergency search.

http://www.kscourts.org/Cases-and-Opinions/opinions/CtApp/2009/20091030/100888.pdf

United States v. Johnson, ___ F.3d ___ (10th Cir. No. 08-4031, filed 10/27/09). Defendant's firearm possession conviction is affirmed where defendant forfeited any Fourth Amendment privacy rights he might have had in a storage unit by directing his girlfriend to enter into the rental agreement using another person's name and stolen identification. Noting the rental contract was procured by identity fraud, the court stated, "[w]e will not be a party to this fraud by legitimizing Johnsons interest in the storage unit. Therefore, whatever subjective privacy expectations Johnson has in the storage unit were not expectations that "'society is prepared to recognize . . . as objectively reasonable.'" Good discussion of Fourth Amendment "standing" in FN 3.

http://ca10.washburnlaw.edu/cases/2009/10/08-4031.pdf

United States v. White, 584 F.3d 935 (10th Cir. 2009). Defendants' drug conspiracy convictions are affirmed where the district court correctly refused to suppress illicit drugs discovered in their car during a traffic stop because: 1) the district court's finding that a state trooper had reasonable suspicion to pull defendant over for unsafely passing another vehicle was not clearly erroneous; 2) defendant waived his right to assert certain arguments on appeal in his plea agreement; 3) the officer had reasonable suspicion of defendants' drug activity based on a) defendants' unusual nervousness; b) their improbable travel plans; c) one defendant's criminal history; and d) Las Vegas's reputation as a narcotics source city and Indianapolis's reputation as a drug distribution hub. On October 2 Trooper Dean stopped defendant's car when he saw it pass another Eastbound vehicle and return to the right-hand lane without leaving enough space between the vehicles, an alleged violation of K.S.A. 8-1516(a). White had a valid Indiana drivers license and said he was headed home from Las Vegas after a four-day stay. The rental agreement indicated the car was rented on October 1 and was due back on October 3, which Trooper Dean said was "bizarre." Dispatch reported that White had two prior incidents of drug-related charges. After doing a trooper "two-step," Dean did not get consent to search. Dean then told White to follow him to a KDOT office about eight miles to the East for a dog sniff. The dog alerted, and officers found three bundles of marijuana in the trunk and later found for kilos of cocaine under the hood.

http://ca10.washburnlaw.edu/cases/2009/10/07-3153.pdf

State v. Ortiz, 215 P.3d 811 (N.M. App. 2009). (Summary by Ken Wallentine - Xiphos Newsletter October 2009 #1): Court Orders Surrender of Officer's Personal Cell Phone Records to Criminal Defense Attorney. Officers were looking for a car that might contain a person suspected of having just overdosed on heroin at a local store. There was information that a person in the car was giving CPR to the overdose victim. An officer saw Ortiz's car weaving and driving erratically. The officer stopped Ortiz and ultimately arrested him for DUI. Ortiz was not involved in the overdose situation. Ortiz claimed that there was no reasonable suspicion for the stop and that the officer's explanation about the overdose was pretextual. Ortiz sought an order from the trial court that the police officer be required to surrender his personal cell phone records for the time surrounding the stop and the arrest. The trial court, sustained by the New Mexico Court of Appeals, made a number of findings that would surprise any scholar familiar with electronic communications records. The court found that the officer's personal phone records for the time that he was on duty and in a marked patrol car and engaged in official duties were records under the control of the state. The court also found that neither the United States Constitution nor the New Mexico Constitution gave the officer a right of privacy in his cell phone records (though this finding did not extend to the content of communications). The court also found that the federal Electronic Communications Privacy Act did not apply to this situation. The federal law requires that no cell phone records can be disclosed to law enforcement unless there are reasonable grounds to believe that the records are relevant and material to a criminal investigation. Ortiz's defense attorney didn't use the term "fishing expedition" in the demand for the cell phone records, though he offered no substantive basis to show that the threshold for the federal statute had been met. The officer asserted his privacy rights under the federal and state constitutions and declined to provide the cell phone records. The prosecution supported the officer in his exercise of constitutional rights and maintained that the Constitution and plainly written federal statute barred the State from coercing the officer to give up his personal records. In response, the trial court dismissed the DUI and other charges against Ortiz. The court of appeals sustained the trial court. This case serves as a warning, at the very least in New Mexico, of the courts' willingness to attempt to exercise control over an officer's communication records, with no substantive basis for doing so and in a fairly plain violation of the Electronic Communications Privacy Act, when the officer is on duty, in a marked vehicle, and on official business.

State v. Johnson, 42 Kan. App. 2d 799, 217 P.3d 42 (2009), affirmed ___ Kan. ___ (No. 100728). Wichita officers responded to an alleged burglary. Defendant Vicky Johnson was in an apartment that her boyfriend had been asked to vacate. Officers entered with weapons drawn, and encountered two women boxing up stuff. Defendant told officers she was there to help her boyfriend clear out his stuff. While speaking with an officer in the kitchen, Defendant asked for a cigarette and reached for her purse. The officer denied her request, but she grabbed a cigarette package out of the purse. The officer took it away from her, looked inside and saw a crack pipe. The officer then searched the purse, finding a prescription bottle containing cocaine. The Court of Appeals held the evidence should have been suppressed. It found the facts supported a determination the officer had reasonable suspicion her personal safety was at risk, although it was a close call. However, it held that looking into the cigarette package exceeded the scope of a valid Terry search, because once the officer seized it, the Defendant no longer had access to it. Judge Hill dissented, saying the Court's analogy of the cigarette package to the car in Gant was too tenuous.

State v. Peterman, 42 Kan.App.2d 761, 216 P.3d 710 (2009). The district court determined that a domestic standby to keep the peace was insufficient to establish the emergency exception to the warrant requirement. A female called for a standby while she removed items from her significant other's residence. The deputy didn't get explicit consent from anyone, but followed her in to the house, and Peterman came around the corner carrying an assault-type rifle. Peterman pointed the rifle at the deputy and stated, "'Get the fuck out of my house.'" The deputy put his hands in the air and told Peterman to stop. Peterman walked closer to the deputy, lifting the rifle up at an angle and repeated, "'[G]et the fuck out of my house.'" The deputy left, fearing he might be shot. At some point, officers removed a .308 caliber rifle and a magazine from Peterman's home. In a prosecution for aggravated assault on a law enforcement officer, the district court suppressed all the evidence. The Court of Appeals reversed, holding that the trier of fact should be allowed to determine whether Peterman's actions were reasonable once he knew a deputy was in his home, even though the deputy's initial entry may have been illegal. It held that evidence of a separate, independent crime initiated against police officers in their presence after an illegal entry or arrest will not be suppressed under the Fourth Amendment. See United States v. Waupekenay, 973 F.2d 1533, 1537-38 (10th Cir. 1992).

http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2009/20090925/101852.htm

State v, Marx, 289 Kan. 657, 215 P.3d 601 (2009), reversing in part 38 Kan.App.2d 598, 171 P.3d 276 (2007). A motor home passed an officer sitting beside the highway. A hubcap came off the motor home. The officer retrieved the hubcap, then caught up with the motor home alleging he intending to stop it to return the hubcap. The officer saw the motor home cross the fog line, then overcorrect and cross the centerline. The officer stopped the motor home, and then smelled marijuana. After turning the stop back into a voluntary encounter, the officer asked for and was denied consent. He then stated he was going to run his dog around the outside. The driver got back into the motor home despite instructions to stop. She later exited and was arrested. A search of the motor home's interior and septic tank yielded drugs and paraphernalia. The occupants moved to suppress, arguing there was no reasonable suspicion for a stop. The Court of Appeals disagreed. It held that this was not a valid safety stop, but was a stop based on reasonable suspicion of failure to maintain a single lane in violation of K.S.A. 8-1522(a), declining to follow State v. Ross, 37 Kan.App. 2d 126, 149 P.3d 876, rev. denied 284 Kan. 950 (2007), and instead chose to follow United States v. Jones, 501 F.Supp. 2d 1284 (D. Kan. 2007). The Supreme Court affirmed the Court of Appeals ruling that the stop was not a valid safety stop, but reversed the Court of Appeals holding that the stop was based on reasonable suspicion. In doing so, it interpreted K.S.A. 8-1522(a) as setting out two rules of the road: (1) a vehicle must be driven as nearly as practicable entirely in a single lane (the single lane rule) and (2) a vehicle cannot be moved from a lane of traffic unless the driver first determines the move can be made with safety (the lane change rule). Noting the single lane rule is "temporarily suspended" when it is impracticable to stay within lane markers (such as during high winds or a road obstruction). Interpreting the term "practicable" in the single lane rule, it declared the statute requires only compliance close to that which is feasible, and an incidental and minimal lane breach is not enough to establish reasonable suspicion of violating the single lane rule. Justice Davis and Justice McFarland concurred, but wrote separately to state that the majority's analysis of K.S.A. 8-1522(a) "results in an unreasonable and unworkable standard for an officer to apply when determining whether there is reasonable suspicion to initiate a traffic stop for failing to maintain a single lane."

http://www.kscourts.org/Cases-and-Opinions/opinions/supct/2009/20090918/98059.htm

United States v. Albert, ___ F.3d ___ (10th Cir. No. 07-4193, filed 09/01/09). Defendant was a passenger in a vehicle stopped for a traffic violation, and wasn't wearing a seatbelt. The officer requested his ID and ran him for warrants, in addition to the driver. The driver admitted she had no insurance, and was arrested on warrants. Albert did not have warrants, but had a suspended license. The officer searched the car incident to the driver's arrest and found methamphetamine. She had Albert placed in handcuffs, and another officer patted him down, finding a tourniquet in his front pocket. The arresting officer decided to impound the vehicle and found a shotgun and shells in the trunk. Albert admitted possession of the weapons. He was a convicted felon. He alleged the gun and shells should be suppressed because the arrest was illegal. The Circuit rejected his argument holding that he was only detained in handcuffs until the shotgun was found and Albert admitted possession. It held the use of handcuffs did not elevate the detention to an arrest and was reasonable after finding drugs in the car. The court held that seizure of the tourniquet was an impermissible frisk, but that did not transform the encounter into an arrest. Finally, it held that discovery of the shotgun and shells would be admissible either through the independent source doctrine or inevitable discovery doctrine (impound and tow would be valid).

http://ca10.washburnlaw.edu/cases/2009/09/07-4193.pdf

United States v. Parada, ___ F.3d ___ (10th Cir. No. 07-3272, filed 08/25/09). Parada was the ringleader of an operation to transport PCP from California to Virginia. He hired Bradley as a driver, and Parada bought a cooler used to transport the PCP. An officer stopped the van outside Junction City for a traffic violation. He noticed the presence of multiple air fresheners, discrepancy in the rental agreement and Bradley's nervous demeanor. The officer ran his dog around the van. The dog alerted to the driver's door, but did not indicate. The officer found a small amount of marijuana in the side pocket of the front passenger's door. They later found about $500,000 worth of PCP in a cooler in the back. Parada alleged he was illegally detained after Bradley denied consent to search, but the court had previously held the stop was legal and continuted detention was based on reasonable suspicion in a companion case, United States v. McNeill, 136 F.App'x 153 (10th Cir. 2005). Parada also allege search of the cooler was illegal, but the court held he lacked standing because he did not assert ownership or testify at the suppression hearing he had an expectation of privacy or a legitimate possessory interest in the vehicle (see United States v. Eckhart, 569 F.3d 1263 (10th Cir. 2009). Finally, the court held that while there is a difference between a dog alert and an indication, See United States v. Forbes, 528 F.3d 1273 (10th Cir. 2008), an alert is sufficient to establish probable cause.

http://ca10.washburnlaw.edu/cases/2009/08/07-3272.pdf

State v. Dean, ___ Kan.App.2d ___, ___ P.3d ____ (No. 100,120, filed 08/29/09). Wichita detectives told officer Goodman to check out reports that someone was selling crack out of a car parked in front of 1301 N. Piatt in Wichita. Goodman was familiar with the residence and knew the Defendant and others lived there. They went to the residence. No cars were parked out front. They obtained consent to enter and look around. Goodman encountered Dean in the kitchen, and asked if he had any weapons on him. Dean said no, but Goodman patted him down and found a crack pipe, other paraphernalia and cocaine on him. The Court of Appeals held the following factors were insufficient for a Terry stop or a pat down: (1) Goodman had received a report of an unidentified individual selling crack from an unidentified vehicle in front of a residence where Dean and others lived; (2) no vehicles were parked in front of the residence when Goodman arrived to investigate; (3) Goodman was only generally familiar with the residence and its occupants, including the defendant; (4) during a consensual search of the home, Goodman observed no illegal activity; and (5) when Goodman saw Dean in the kitchen, he thought Dean appeared nervous.

http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2009/20090828/100120.htm

United States v. Burgess, ___ F.3d ___ (10th Cir. No. 08-8053, filed 08/11/09). Police stopped Burgess's motor home for a traffic violation. A canine alerted and officers searched it, finding drugs and a laptop computer and two external hard drives containing child pornography. They obtained a warrant and asked to search the computer and drives for evidence of drug crimes. Officers sent the computer equipment to ICAC for forensic examination. The hard drives were searched about 1 and a half months after they were seized and a preview search yielded child pornography. Scott Hughes immediately stopped the Encase backup and obtained another warrant for search and seizure of child pornography. The search yielded about 70,000 images. Burgess argued the warrant lacked particularity and the search of the computer exceeded the scope of the warrant. The Circuit rejected his arguments, finding the seizure of the computer was justified by the automobile exception, that the initial search was within the scope of the first warrant issued and supported by probable cause to believe it contained pay-owe sheets or trophy shots, and the second warrant was specific enough to search for evidence of sexual exploitation of children. Burgess also argued the warrant should have been limited by filename or directory. The Court rejected this argument, noting the many file types, the possibility of concealment and the need for the process to remain dynamic. The court also said since the investigatory was looking for image files ("trophy shots"), the child pornography would have been inevitably discovered, and also held the Leon exception would apply. The Court also rejected a staleness claim, saying the delay in searching pursuant to the first warrant did not prejudice the defendant.

http://ca10.washburnlaw.edu/cases/2009/08/08-8053.pdf

City of Salina v. Ragnoni, ___ Kan.App.2d ___, 213 P.3d 441 (2009). Ragnoni's ex-wife called police and told them Ragnoni was suicidal because he was drunk and called her and asked her to tell the kids goodbye for him. Officers looked for him, but didn't find him at home. Three days later, based on a hotsheet entry, an officer stopped him, confirmed his identity and asked about him being suicidal. Ragnoni denied being suicidal, but the officer noticed the usual indicators of intoxication. The court held the stop based on the hotsheet entry was a valid public safety stop. [Note: This opinion is authority for a good argument that an "attempt to locate" is good for at least 3 days].

United States v. McCane;573 F.3d 1037 (10th Cir. 2009), cert. denied 2010 WL 680526 (03/01/10). A unanimous panel of the 10th Circuit Court of Appeals held that the Leon good-faith exception to the Exclusionary Rule should apply to uphold searches-incident-to-arrest made prior to the issuance of Gant. In April 2007, an Oklahoma City police officer arrested defendant for driving while suspended, then searched his car and located a gun. McCane was charged with being a felon in possession of a firearm. See also United States v. Albert, ___ F.3d ___ (10th Cir. No. 07-4193, filed 09/01/09); United States v. Davis, ___ F.3d ___ (10th Cir. No. 08-6266, filed 12/18/09).

State v. Hovhannisyan, ___ Kan.App.2d ___, ___ P.3d ____ (No. 101,344, filed 07/24/09). Defendant was on ISP and required to submit to random UAs and random home visits. After she tested positive a couple of times and told her probation officer she spent all her time at home, he went for a home visit and found marijuana paraphernalia in her house. She alleged the evidence should be suppressed in her prosecution for possession. The district court agreed, finding no reasonable suspicion she was smoking marijuana at her residence. The Court of Appeals reversed, noting the lesser expectation of privacy of probationers, but holding the random search provision violated State v. Bennett.

http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2009/20090724/101334.htm

State v. Ransom, ___ Kan. ___, ___ P.3d ___ (No. 99,794, filed 07/24/09). Ransom killed a person during some drug house robberies. For details see State v. Ransom, 288 Kan. 697, 207 P.3d 208 (2009). A couple days later, Wichita detectives received an anonymous tip leading them to Ransom's girlfriend's house. There, officers conducted a warrantless search, finding several weapons, which were admitted into evidence. Ransom claims they should have been suppressed because his girlfriend did not consent. In the alternative, he argued the consent was coerced because several detectives and officers surrounded her house; she was placed in a patrol car; it was cold; she was pregnant; and she needed to use the bathroom. The girlfriend and her grandmother both testified that she did not give consent, but officers testified that she did. Finding the officer's testimony more credible and the consent voluntary, the district judge denied the motion. The Supreme Court affirmed. Ransom, who was present when the search was conducted, also argued search was unlawful because he was not provided an opportunity to refuse consent. The State contends that the officers were not required to solicit Ransom's views once they had Washington's voluntary consent. The Court agreed, stating that officers had no reason to believe Ransom lived there (the girlfriend had lied to them about that) and Ransom never objected. In doing so, the Court reasoned:

Certainly, law enforcement officers are not free to ignore a resident's refusal of consent to search a dwelling and then seek a more welcoming response elsewhere, and they are not free to manipulate an uncooperative or potentially uncooperative resident's presence or absence to silence him or her. But officers are not required to seek out consent or refusal of another resident once one resident's voluntary consent has been obtained.

http://www.kscourts.org/Cases-and-Opinions/opinions/supct/2009/20090724/99794.htm

State v. Diaz-Ruiz, 42 Kan.App.2d 325, 211 P.3d 836 (2009). Trooper Nicholas stopped a pickup on I-70 in Geary county because he thought the ladder in the rear may be loose. As he approached the pickup, he tugged on the ladder. Although it moved side to side, Nicholas concluded it was secure. He then asked about travel plans and for a driver's license. The driver didn't have one, and a later check revealed he was suspended out of New Mexico. Nicholas turned it back into a voluntary encounter, then obtained consent to "check the load." Under plywood in the rear of the pickup, he found 300 lbs of marijuana. The Court of Appeals affirmed suppression, finding the occupants were illegally detained, and their consent was not attenuated from the illegal detention. While an officer can explain the purpose of the stop, once the officer dispels his suspicions he need to release the subjects. The Court also questioned the officer's credibility about the timing and preparation of a written warning citation, and pointed out the trooper was motivated by a "desire to search the vehicle of these two Hispanic men."

http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2009/20090717/100926.htm

State v. Henning, 289 Kan. 136, 209 P.3d 711 (2009), reversing 38 Kan.App.2d 706, 171 P.3d 660 (2007). In 2006 the Kansas legislature amended K.S.A. 22-2501(c) to allow a search incident to arrest for evidence of "a" crime as opposed to evidence of "the" crime. Six days after the statutory amendment, a deputy saw Henning coming out of a convenience store, and seemed to recall he had a warrant. The deputy approached Henning after he was seated in the passenger side of a vehicle, verified the warrant and arrested Henning. The deputy then searched the car incident to arrest and found amphetamine and paraphernalia in the vehicle. Henning argued "a" crime meant only "an identified crime for which the officer has probable cause to believe occurred." The Court of Appeals held that "a" crime means "any" crime, and upheld the statute as constitutional, providing a good review of the legislative history of K.S.A. 22-2501(c) and the case law on search incident to arrest. In view of Arizona v. Gant, the Supreme Court reversed, holding the amendment was unconstitutional.

http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2007/20071130/98118.htmSafford Unified School District v. Redding, 557 U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 08-479, filed 06/25/09). Savana Redding was a 13-year-old eighth grade honor student at Safford Middle School in Arizona when the school's principal pulled her out of class and took her to his office. Lying open on a desk in his office was Savana's planner (which she claimed to have let another student borrow), and some prescription-strength ibuprofen pills, as well. Possession of these pills on campus was prohibited by a school rule, but Savana denied having anything to do with them. Not satisfied with the denial, the principal asked to search Savana's belongings. After she allowed him to do so, (nothing was found) she was then taken to the school nurse's office where she was strip-searched quite thoroughly by the school nurse and another official (both female). No pills were found through that search either. The United States Supreme Court held there was no reasonable suspicion and held the search was illegal. However, it granted the school officials qualified immunity.

http://supct.law.cornell.edu/supct/html/08-479.ZO.html

People v. Weaver, ___ N.Y. ___ (No. 53, filed 5/12/09). The New York Court of Appeals held that before attaching a GPS device known as a "Q-Ball" to a suspect's van and continuously monitoring the car's whereabouts for 65 days, the police should have obtained a search warrant. The van was parked on a public street when the q-ball was attached, and officers wirelessly downloaded data from the GPS device by driving by the van. The state sought to use this data to prove one of two burglary charges against the van's owner. The data placed the van at a K-Mart parking lot during a burglary on Christmas Eve. Distingishing States v Knotts, 460 US 276 (1983), based on the antiquated beeper technology involved in that case, the Court relied exclusively on the New York State Constitution's analogue to the U.S. Constitution's Fourth Amendment right against unreasonable searches and seizures. The court thereby insulated its decision from reversal by the U.S. Supreme Court (because a state's highest court has the final word on the construction of state law). Smith, J., dissenting, concludes the majority needlessly hamstrings police: "criminals can, and will, use the most modern and efficient tools available to them, and will not get warrants before doing so. To limit police use of the same tools is to guarantee that the efficiency of law enforcement will increase more slowly than the efficiency of law breakers."

http://www.courts.state.ny.us/CTAPPS/decisions/2009/may09/53opn09.pdf

State v. Haffner, ___ Kan.App.2d ___, ___ P.3d ____ (No. 101,061, filed 06/18/09). The district court erred in holding there was no reasonable suspicion to search a parolee's home. Haffner was paroled on drug manufacturing charges. He peed hot on 12/04/07. On 12/19/07, an unidentified woman noticed his parole officer that she saw Haffner cooking methamphetamine in his house. A sheriff's officer received a similar anonymous tip shortly thereafter. The parole officer and police went to visit Haffner on 01/11/08. He wasn't there at the time, but they found an active cook and other items of paraphernalia and contraband. They obtained a warrant and seized the items. The district court suppressed the evidence finding no reasonable suspicion for the 01/11/08 entry into the residence. The Court of Appeals reversed, finding two anonymous calls and a failed drug test one month prior was sufficient to establish violation of parole conditions, noting that parolees have a greatly diminished expectation of privacy and the degree of reliability necessary to support a search is similarly greatly diminished.

http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2009/20090619/101061.pdf

Cassady v. Goering, ___ F.3d ___ (10th Cir. No. 074-1092, filed 05/28/09). A warrant allowing search of an entire farm and seizure of "any evidence of criminal activity," is a general warrant proscribed by the Fourth Amendment, and a Sheriff responsible for the drafting and executing of such a warrant is not entitled to qualified immunity. Two Colorado grain farmers became involved in a dispute over grain stored on defendant's farm. Cassady attempted to cut off the grain owner's (Queen) right of access to the grain. A fight ensued. Queen apparently won the fight. When police arrived, Queen told them Cassady had marijuana plants on his property. Queen said he saw them growing in a quonset hut. Despite the lack of physical injuries to Queen, Sheriff Goering arrested Cassady for battery and directed a deputy to get a search warrant. He also allowed Queen to remove the disputed grain. The deputy had never drafted a narcotics search warrant. The warrant allowed a search of the entire farm for, among other things, "any and all narcotics," and "any and all illegal contraband," and "all other evidence of criminal activity." The evidence established the officers really trashed the place while serving the warrant. The evidence was suppressed in the criminal action against Cassady. Cassady sued Goering for violating his Fourth Amendment rights. The case was tried to a jury, which awarded Cassday judgment. However the verdict was set aside due to an "prejudicially low damages award." Goering appealed from denial of qualified immunity. The Circuit affirmed denial of qualified immunity due to the general warrant holding. McConnell wrote a 21 and ½ page dissent stating the severability doctrine should have been applied to save the warrant.

http://ca10.washburnlaw.edu/cases/2009/05/07-1092.pdf

State v. Ulrey, ___ Kan.App.2d ___, ___ P.3d ____ (No. 98,411, filed 05/29/09). Deputy Tatro saw a vehicle driving in Reno county and knew the driver had a revoked license. He confirmed with a dispatcher it was still revoked, then tried to stop the car. The driver proceeded approximately a mile and a half down the road, then pulled into her own driveway. She got out and contacted the deputy in front of his patrol car. Two male passengers also got out, and Tatro told them to stand in front of the stopped vehicle. Because Tatro was outnumbered, he put the driver in the back seat of his patrol car, then talked to the two passengers. Neither had any warrants, but both had suspended driver's licenses. Tatro told them they could go in the driver's house and call for a ride. Tatro looked in the stopped vehicle for the driver's purse and saw it on the passenger floorboard. Before opening the door, he noticed the odor of anhydrous ammonia. From outside the car, he saw a red and white water jug on the back seat floor, and a red milk crate containing kitchen strainer and box of salt. When he opened the door, the smell of anhydrous got much stronger. Tatro and his back-up officer then handcuffed the two men. Ulrey was Mirandized and denied any knowledge of the items in the vehicle, saying he had just caught a ride to go fishing and drink beer. No beer or fishing items were found in the car. Ulrey was charged with various methamphetamine manufacturing charges, but the jury only convicted him of possession of anhydrous ammonia and possession of drug paraphernalia. Ulrey claimed the district court erred in denying his motion to suppress the evidence. He alleges he had standing to challenge the search of someone else's vehicle, and that he was illegally detained. The Court of Appeals affirmed, holding that Ulrey did not have standing, and the taint of his brief illegal detainment was dissipated when Tatro discovered incriminating evidence in plain view.

http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2009/20090529/98411.htm

United States v. Otero, ___ F.3d ___ (10th Cir. No. 08-2154, filed 04/28/09). A postal inspector investigating credit card fraud by a mail carrier drafted a warrant allowing a search of the carrier's house and computer for evidence of her crimes. The portion of the warrant authorizing a search of the carrier's computer allowed search and seizure of "any and all" information data devices, programs and other materials, but did not limit to to evidence for which probable cause existed. The inspector meant to limit it to items concerning mail and credit card fraud, but the warrant did not contain these limitations. The inspector presented the warrant and affdavit to an AUSA, who approved it. A judge signed it, and defendant's computer was searched, yielding some false hits, but also two erased files that were incriminating. Otero claimed the warrant lacked specificity, and the evidence should have been suppressed. The Court of Appeals agreed the warrant lacked specificity, but held that the good faith exception from United States v. Leon, 468 U.S. 897 (1984) should allow admission of the evidence because the searching officers did not have subjective knowledge that he search warrant was unconstitutional. The court noted that searches of a computer with its ability to collect a huge array of personal information into one place "makes the particularity requirement that much more important."

http://ca10.washburnlaw.edu/cases/2009/04/08-2154.pdf

Arizona v. Gant, 556 U.S. ___, 129 S. Ct. 1710, 173 L. Ed. 2d 485 (04/21/09). The Supreme Court ruled police violated the defendant's rights by searching his car incident to arrest. Rodney Joseph Gant was handcuffed, seated in the back of a patrol car and under police supervision when Tucson, Ariz., police officers searched his car. They had just seen him drive up to a house suspected of drug activity, and knew he had a warrant for driving while suspended. A sharply divided Arizona Supreme Court ruled that the search violated the Fourth Amendment. The Supreme Court agreed. It held that police can only search a car incident to arrest when it is reasonable to believe that the arrestee might gain access to the vehicle at the time of the search or that the vehicle contains evidence of the offense of arrest. "Police may search a vehicle incident to a recent occupant's arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest. When these justifications are absent, a search of an arrestee's vehicle will be unreasonable unless police obtain a warrant or show that another exception to the warrant requirement applies."

http://www.supremecourtus.gov/opinions/08pdf/07-542.pdf

United States v. Biglow, ___ F.3d ___ (10th Cir. No. 08-3155, filed 04/20/09). In a drug prosecution, the District Court's order suppressing evidence found in Defendant's home is reversed, where the government's affidavit in support of the warrant provided a substantial basis for probable cause because it showed that Defendant served as a major artery through which drugs were pumped to lower-level traffickers.

http://ca10.washburnlaw.edu/cases/2009/04/08-3155.pdf

United States v. Orduna-Martinez, 561 F.3d 1134 (10th Cir. 2009). A trooper stopped defendant's car because his Ohio State Buckeye's license plate frame was obstructing one of the two-digit year stickers on his license plate. After the stop, the trooper found 25 kilograms of cocaine in the car based on a consent search. The motion to suppress was properly denied because their was reasonable suspicion the tag was obstructed in violation of K.S.A. § 8-134.

http://ca10.washburnlaw.edu/cases/2009/04/07-3298.pdf

State v. Golston, 41 Kan.App.2d 444, 203 P.3d 10 (2009). Wichita officers made a car stop of a car suspected to be occupied by known gang members involved in drug activity after it had twice been seen at an Amoco station known for drug activity. The Supreme Court had upheld the stop in State v. Anderson, 281 Kan. 896, 136 P.3d 406 (2006). Golston, the passenger, alleged that police held him too long while awaiting the arrival of a drug-sniffing dog, and the officer's pat-down was not justified by the facts. The Court of Appeals rejected Golton's claims. Based on a the facts, a reasonable person could suspect the occupants were involved in drug activity and the detention was proper. The court also held the pat-down was proper based on a SPIDER hit (Special Police Information Date Entry Retrieval System) as a documented gang member, riding with a known gang member on supervised release for drug crimes who was involved in recent drug activity and he had just come from the Amoco known for drug activity.

http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2009/20090313/99413.htm

State v. Schuff, 41 Kan.App.2d 469, 202 P.3d 743 (2009). A Salina officer was dispatched to a call about a car driving through a dead-end street at 12:40 a.m. He responded and found a white car parked of the paved road next to a field. The officer stopped about 20 yards behind the vehicle and turned on his emergency lights. He approached the car, observed four occupants and smelled marijuana. Schuff alleged there was no reason for the stop. The court rejected his argument holding it was a valid safety stop.

http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2009/20090313/100356.htm

United States v. Poe, ___ F.3d ___ (10th Cir. No. 07-6237, filed 03/03/09). Drug and firearm convictions are affirmed, where the bounty hunters who searched Defendant's home did not qualify as state actors because they acted without the assistance of law enforcement and for their own pecuniary interests. Bounty hunters found Poe at Kim Wilson's house. The hunters believed that Wilson was Poe's girlfriend. The exact status of Poe and Wilson's relationship wasn't clear, but Poe had a key to her house, admitted he showered, shaved, changed clothes and ate there up to three times a week, and Wilson never asked him to leave. The hunter followed Wilson to a store. Wilson told them Poe was at her house, and she agreed to take them there. Wilson also said Poe had drugs in the house he was planning to sell, and there was a silver gun in the house. Poe admitted a visitor to the back door. As the visitor was leaving the same way, the hunters entered, struggled with Poe, tased one of his Pit Bulls, and apprehended Poe. The found in plain view methamphetamine, paraphernalia and a black pistol. They called police. Poe claimed it all, after being Mirandized but before being asked any questions. The Circuit held that contrary to the district court's decision, Poe had standing to raise a Fourth Amendment issue, but held that the bounty hunters were not bound by the Fourth Amendment.

http://ca10.washburnlaw.edu/cases/2009/03/07-6237.pdf

United States v. Winder, 557 F.3d 1129 (10th Cir. 2009). An Oklahoma officer saw and clocked Defendant's van speeding 49 in a 40. When the officer attempted to stop the vehicle, Defendant fled. After a 100 mph chase, Defendant pulled into a trailer park and ran into a wall. Defendant attempted to bail on foot with a shiny object in his hand, but the officer told him to drop the object or he would "kill him." Making his first good decision of the day, Winder complied. In the van officers found drugs, paraphernalia, guns, alcohol, cash and a handcuff key. Winder contended that since police policy did not allow issuance of a ticket to those speeding less than 10 miles per hour over the limit, the stop was unconstitutional. The Circuit rejected this contention, holding that an observed traffic violation is reasonable suspicion for a stop, no matter what the officer's subjective motivation.

http://ca10.washburnlaw.edu/cases/2009/02/07-6208.pdf

State v. Davison, ___ Kan.App.2d ___, 202 P.3d 44 (No. 99.673, filed 02/20/09). A Lindsborg officer stopped a car for failing to dim its brights. A check of the driver revealed she was suspended. The officer arrested her. A back up officer arrived and started searching her car. In the meantime, Defendant gave the officers instructions on having a friend come get the car. During the search, officers found drugs and paraphernalia in the car. Defendant claims it should have been suppressed, arguing that a "person who has been removed from her car, arrested, handcuffed and placed in a patrol car many feet from her own vehicle is not in the immediate presence of the area searched, that is, the car." The defendant asserted the search did not fall within the "proximity requirement" of K.S.A. 22-2501 and was therefore illegal. The Court of Appeals rejected the argument, stating: "We are convinced Kansas courts have continuously applied Belton to permit the search, under K.S.A. 22-2501, of a vehicle recently occupied by an arrestee, with the determination of whether the arrestee is a 'recent occupant' often made by reference to the Tygart factors. Applying the Tygart factors here leads us to the conclusion the search of this defendant's vehicle did not exceed the permissible scope. Here, the defendant was arrested in her vehicle, the search began shortly after the arrest was made and shortly after the defendant had departed the vehicle, and the arrest was made at a traffic stop on a public street. These factors all support the validity of the search." Greene, J., dissented, stating "I would hold that the statutory phrase 'the area within [the arrestee's] immediate presence' means the area must be within the direct, unseparated vicinity of the arrestee, with no intervention preventing direct access to and awareness by the person. Such an area would clearly not include the vehicle under the circumstances in this case."

http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2009/20090220/99673.htm

United States v. Vazquez, ___ F.3d ___ (10th Cir. No. 08-4044, filed 02/10/09). A Nevada interdiction officer stopped Mr. Vazquez and was suspicious about him, but could not make a case. He called a Utah officer and relayed his suspicion. The Utah officer stopped Vazquez's car at about 3:45 a.m. after seeing it cross lane divider lines a few times. Four minutes into the stop, the Utah officer invited Vazquez back to his car. A computer check revealed a history of cocaine trafficking. Vazquez said he lived in Illinois and borrowed his girlfriends's car (who lived in Tennessee) to visit his children in Las Vegas because the car got better gas mileage. He identified her as Melissa Brooke Shepard although registration listed the owner as Melissa Brooke Shoup. Vazquez had difficulty explaining what she did for a living, eventually saying she was between jobs. When asked if he had various contraband in the car, Vazquez said no, but altered his body language when asked about methamphetamine. 19 minutes into the stop, Vazquez denied a consent search. A dog alerted on the vehicle, and police later found methamphetamine. Defendant alleged the stop was illegal, and the duration and scope exceeded reasonableness. He also claimed the district court improperly admitted expert testimony by a law-enforcement officer regarding how traffickers hide drugs. The Circuit rejected both contentions, finding the stop was based on reasonable suspicion Vazquez violated a statute saying motorists must drive "as nearly as practical entirely within a single lane," the scope and duration was reasonable based on indicators of drug activity, and the officer was qualified to testify about how traffickers hide drugs.

http://ca10.washburnlaw.edu/cases/2009/02/08-4044.pdf

United States v. Sanchez, ___ F.3d ___ (10th Cir. No. 08-5047, filed 02/10/09). Defendant was standing by a vehicle in the driveway of a house when police arrived to execute a drug search warrant. Defendant ordered him to get down, but he ran instead. Officers pursued and apprehended him. They found cash, keys to the house, and a cell phone with a picture of the defendant holding a gun found in the house on defendant's person. He claimed the search was illegal and the evidence should be suppressed. The Circuit disagreed, holding the warrant was valid, officers had the right to detain Sanchez, and his flight gave officers probable cause to arrest for obstruction. Although the warrant affidavit did not specifically lay out direct evidence of criminal conduct at the supplier's house, it is "merely common sense that a drug supplier will keep evidence of his crimes at his home."

http://ca10.washburnlaw.edu/cases/2009/02/08-5047.pdf

Arizona v. Johnson, 555 U.S. ___, 129 S.Ct. 781, 172 L.Ed.2d 694 (2009). Does the Fourth Amendment require an officer before frisking a passenger in a stopped car, to have 1) reasonable suspicion that a passenger in a car is armed and dangerous, and, 2) reasonable suspicion that the armed and dangerous passenger has committed a separate crime? In a 9-0 decision, the United States Supreme Court said no. An officer may frisk a passenger (or driver) in a stopped vehicle any time the officer possesses reasonable suspicion that such passenger (or driver) is armed and dangerous to the officer. Period. Secondly, the decision briefly mentions, and again supports, that during Terry Stops (like car stops) officers may ask questions unrelated to the reason for the stop as long as the duration of the stop is not prolonged by the unrelated questions. Tucson gang officers stopped a car in the Sugar Hill area due to a insurance suspension. Johnson was a back-seat passenger. When the vehicle stopped, he was speaking to the front-seat occupants, then turned around and looked backwards at the officers behind him. He was dressed all in blue and had a blue bandana and a scanner in his pocket. He admitted that he had done time for a felony. An officer asked him to get out of the car because she wanted to question him about his gang affiliation. The officers said the Sugar Hill area was associated with the Crips gang. Once he got out of the car, she patted him down. Near his waistband she felt the butt of a handgun. Johnson then began to struggle and was placed in handcuffs. Johnson also had marijuana in his pocket and was convicted felon. Johnson alleged the evidence should have been suppressed.

            You may recall, Kansas is currently fighting over this "unrelated questioning" issue, our state Supreme Court having earlier held in State v. Smith (2008) that Terry v. Ohio (1968) did not change after Muehler v. Mena (2005), and thus preventing Kansas officers from asking unrelated questions. In the Smith decision, Kansas did not join the national minority opinion on prohibiting unrelated questioning……Kansas became the national minority opinion. Well, this new Johnson case gives new life to our argument in Smith, and be assured that we are immediately moving forward on that front. The plan is to attack Smith in the Sedgwick County SO case of State v. Morlock (2008)(based upon Smith, officers may not ask questions of passengers without reasonable suspicion that the passenger has committed a crime, travel plans, etc.), currently pending review by the Kansas Supreme Court.

State v. Bennett, 288 Kan. 86, 200 P.3d 455 (2009)(affirming State v. Bennett, 39 Kan.App.2d 890, 185 P.3d 320 (2008)). Nicholas Bennett was convicted of possession of meth and placed on probation. One of the conditions of his probation was that he was required to submit to random, suspicionless searches by community corrections and/or law enforcement officers. The Kansas Supreme Court held such a condition is unconstitutional. The court stated: "Given probationers' expectations of privacy, community corrections officers or other law enforcement officers must have a rational, articulable suspicion of a probation violation or other criminal activity before subjecting the probationer's person or property to a search." Therefore, in Kansas, these are the rules concerning the search of convicted persons (in declining order because of the declining degree of state control over the defendant):

1.         Incarcerated prisoners have no expectation of privacy, and are subject to random and             suspicionless searches.

2.         Parolees have more expectation of privacy than an incarcerated prisoner, but less than a             free citizen; therefore, parolees are subject to suspicionless searches as long as the             searches are not "arbitrary or capricious."

3.         Probationers have a greater expectation of privacy than do parolees, but still less than a             free citizen. Therefore, despite whatever conditions a court may order, community             corrections officers or other law enforcement officers must now have reasonable    suspicion of criminal activity before subjecting a probationer to a search of their person     or property.

4.         Free citizens enjoy the most protection from unreasonable searches: an officer must have             probable cause to search.

Remember that you may at anytime request consent to search, except during a temporary detention (Terry Stop) if such request for consent to search is outside the scope of the reason for the temporary detention.

http://www.kscourts.org/Cases-and-Opinions/opinions/supct/2009/20090130/98038.htm

State v. Branstetter; ___ Kan.App.2d ___, 199 P.3d 1272 (No. 98,884, filed 01/23/09, motion for rehearing filed 02/05/09, petition for review filed 02/23/09). Jason Branstetter walked out of a store, got into his car and drove away. A deputy knew Branstetter, knew he probably had warrants and drugs, and stopped his car. A passenger in Jason's car was negative for warrants. The vehicle's owner was not present, and based upon the agency's policy, the deputy did not ask Jason what Jason wanted done with the car. The passenger was never given the opportunity to take possession of the car. During a later inventory search of the vehicle the deputy found methamphetamine in center cup holder of the rear seat. The Court of Appeals held the inventory search (search incident to arrest?) should be suppressed because there was no reason to tow the vehicle. The judges remind us that an inventory search is an exception to the search warrant rule because "they serve three purposes: the protection of the owner's property while it remains in police custody, the protection of the police against claims or disputes over lost or stolen property, and the protection of the police from potential danger….[a]n officer searching a car after a lawful impoundment may conduct a 'warrantless inventory search of the personal property within the vehicle, including the glove box and trunk, when the same may be accomplished without damage to the vehicle or its contents.'"

"Although no bright-line rule specifies or limits the 'reasonable grounds' for impoundment, our Supreme Court has identified six situations giving rise to reasonable grounds: ….[T}he necessity for removing 1) an unattended-to car illegally parked or otherwise illegally obstructing traffic; 2) an unattended-to car from the scene of an accident when the driver is physically or mentally incapable of deciding upon steps to be taken to deal with his property, as in the case of the intoxicated, mentally incapacitated or seriously injured driver; 3) a car that has been stolen or used in the commission of a crime when its retention as evidence is necessary; 4) an abandoned car; 5) a car so mechanically defective as to be a menace to others using the public highway; 6) a car impoundable pursuant to ordinance or statute…," like forfeiture. State case law requires that the owner, operator or person in charge of the vehicle, if able, to make a determination as to the disposition of the vehicle. "Only when a vehicle is found illegally parked and unattended, or where the person responsible for its possession is unable….or unwilling to instruct the arresting officers as to the vehicle's disposition or some other legal reasonable justifying impoundment exists should the officers assume control over the vehicle." But see K.S.A. 8-1570(c)(3) which allows an officer to lawfully impound a vehicle "[w]hen the person driving or in control of such vehicle is arrested for an alleged offense for which the officer is required by law to take the person arrested before a judge of the district court without unnecessary delay."

http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2009/20090123/98884.htm

United States v. Villegas, ___ F.3d ___ (10th Cir. No. 08-4078, filed 02/02/09). An officer stopped a car for a traffic violation, then received consent to search after turning the stop back into a voluntary encounter. The officer found drugs in the car after the defendant drove it 22 miles away and put it up on a lift. Defendant claims the officer's hand gesture (upraised fingers and showing an open palm) after returning his documents constituted an order for defendant to stay and answer questions, rendering his consent involuntary. The Circuit rejected his argument, finding no reason to disturb the district court's finding the gesture was akin to a vague, inconsequential hand gesture."

http://ca10.washburnlaw.edu/cases/2009/02/08-4078.pdf

United States v. Turner, ___ F.3d ___ (10th Cir. No. 07-1318, filed 01/27/09). A conviction for possession of ammunition by a previously convicted felon is affirmed over claims that the district court erred by: 1) denying defendant's motion to suppress; 2) failing to instruct the jury properly on the law of possession; and 3) limiting his ability to cross-examine a key witness on a specific matter.

United States v. Dejear, ___ F.3d ___ (10th Cir. No. 07-6821, filed 01/09/09). Oklahoma City officers approached a house known to be frequented by gang members. In the driveway, they saw three people sitting in a Caprice. The person in the back seat had a baseball bat in his hands. An officer approached the person (Dejear) sitting in the passenger seat with the door open and his feet outside the car. Dejear looked up, his eyes widened, and he appeared "in a very nervous state." Dejear began stuffing both hands between the seat bottom and the seat back. The officer yelled "show me your hands." Dejear continued to stuff. The officer drew down on him and repeated the command. Dejear complied after the third command. The officer asked what he had been stuffing, and Dejear said, "some weed." Officers searched the car and found weed and a gun. Dejear was charged with possession with intent to sell and possession of the firearm. The jury convicted him of simple possession of both. Dejear claims the evidence should have been suppressed because (1) there was no reasonable suspicion to detain him; (2) no Miranda warning was given; and (3) officers should have gotten a warrant before searching the car. The Circuit rejected all these arguments, holding (1) presence in a high crime area accompanied with nervousness, furtive gestures and refusal to comply with commands was sufficient reasonable suspicion to detain; (2) no Miranda warning was required under the Quarles public safety exception, and (3) the search was a valid automobile search, even though the car searched was in a private driveway (not Dejear's driveway).

http://ca10.washburnlaw.edu/cases/2009/01/07-6281.pdf

Substantive Due Process

Dias v. City and County of Denver, ___ F.3d ___ (10th Cir. No. 08-1132, filed 05/27/2009). Denver passed an ordinance prohibiting the ownership or possession of a pit bull, which the ordinance defined as "any dog that is an American Pit Bull Terrier, American Staffordshire Terrier, Staffordshire Bull Terrier, or any dog displaying the majority of physical traits of any one (1) or more of the above breeds, or any dog exhibiting those distinguishing characteristics which substantially conform to the standards established by the American Kennel Club or United Kennel Club for any of the above breeds." Plaintiffs, none of which still lived in Denver or planned to return, sued alleging the ordinance was invalid for a variety of reasons. The district court held that plaintiffs lacked standing for prospective relief since none planned to return to Denver and were not likely to be prosecuted. The Circuit affirmed. It also affirmed dismissal of a facial vagueness claim, holding the ordinance was specific enough to be enforced. However, the Circuit reversed on a substantive due process claim, finding the petition adequately stated a claim that the ordinance was not rationally related to a legitimate government interest. Construing the facts in the light most favorable to plaintiffs, and reviewing the AKC and UKC breed standards, both of which claimed pit bulls are friendly and good with children, the Circuit held there was a lack of evidence that pit bulls as a breed pose a threat to public safety or constitute a public nuisance.

http://ca10.washburnlaw.edu/cases/2009/05/08-1132.pdf

Title 7

Ricci v. DeStefano, 556 U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 07-1428/08-328, filed 06/29/09, 2009 U.S. LEXIS 4945). The City of New Haven Connecticut refused to certify promotional exams for the rank of lieutenant and captain within their fire department due to disproportionate adverse impact on African-American firefighters who had taken the exam. White and Hispanic firefighters sued, alleging the refusal violated Title 7. The United States Supreme Court agreed. The City's reasons for advocating non-certification were related to the racial distribution of the results. Without some other justification, this express, race-based decision making violates Title VII's command that employers cannot take adverse employment actions because of an individual's race. "If an employer cannot rescore a test based on the candidates' race, § 2000e-2(l), then it follows a fortiori that it may not take the greater step of discarding the test altogether to achieve a more desirable racial distribution of promotion-eligible candidates -- absent a strong basis in evidence that the test was deficient and that discarding the results is necessary to avoid violating the disparate-impact provision. Restricting an employer's ability to discard test results (and thereby discriminate against qualified candidates on the basis of their race) also is in keeping with Title VII's express protection of bona fide promotional examinations."

http://supct.law.cornell.edu/supct/html/07-1428.ZO.html

Traffic & Vehicles

State v. Holm, ___ Kan.App.2d ___, ___ P.3d ____ (No. 100943, filed 05/29/09). Conviction for violationg 8-1602, 8-1603, 8-1604 and 8-1606 are reversed. Holm rolled his van in a ditch at 2:20 a.m. A deputy waited at the scene for an hour for Holm to return, but he never did. The tag came back to Holm. Holm returned the deputy's call 22 hours later. Holm gave a statement that he swerved to miss a deer and rolled the van into a ditch, and did not immediately report it because his cell phone was not working. The court held the statutes only require remaining at the scene of a property damage accident if the property is attended by another person. The statutes do not apply to single car property damage accidents. Also, since the state failed to show that the property damage exceeded $1000, Holm's conviction for violating 8-1606 cannot stand.

Towing

Citifinancial Auto, Inc. v. Mikes Wrecker Service, 41 Kan.App.2d 914, 206 P.3d 63 (2009). Riley county police found a 2004 Mustang abandoned in a parking lot with no tags. Mikes towed the vehicle. It ran the VIN through the KDOR database and received a "No Records Found" response. It sold the vehicle to itself at its own auction on one day's notice for $500, and later sold the vehicle to someone else for somewhere between $11,000 and $12,000. Citifinancial had a $8,641.52 lien on the car, and was noted on the Nevada title as a lienholder. Citifinancial sued Mikes. The district court granted summary judgement holding that Mikes failed to make a reasonable effort to notify Citifinancial. The Court of Appeals reversed, holding the record was insufficient for summary judgement on the due process issue and remanded for further proceedings. However, in doing so, it seemed to suggest that mere compliance with K.S.A. 8-1101 may not be enough when CARFAX and other commercial title search services are available.

http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2009/20090501/100272.htm

Voir Dire

State v. Madkins III, ___ Kan.App.2d ___, ___ P.3d ____ (No. 100,593, filed 11/20/09). Defendant was charged with possessing drugs and sought to voir dire jury panel members on whether they would believe statements just because a police officer said them. After a general question to the panel with no response, the trial judge restricted further inquiry in this area. Finding no reversible error, the Court of Appeals affirmed, finding that further inquiry would be cumulative. The Court adopted the following test: "To determine whether prohibited voir dire questions regarding prospective juror opinion on police credibility violates a defendant's constitutional right to trial by an impartial jury, the court considers the following three factors: (1) whether police officer credibility is at issue in the case and to what extent, (2) whether the prohibited inquiry is cumulative so as to provide no additional benefit in discovering bias, and (3) whether police officer testimony is corroborated by other, nonpolice witnesses." ___ Kan.App.2d ___, Syl. ¶ 10.








































































































































































2008 Case Update List

January 1, 2008 to December 31, 2008 (or thereabouts)

Civil & Criminal Liability

Reilly v. City of Atlantic City, 532 F.3d 216, 231 (3d Cit. 2008). In a former police officer's retaliation claim against the City, his truthful testimony regarding a fellow officer was protected activity, regardless of the fact that testifying in court was one of his usual job duties. Thus, this protected activity falls outside the ruling from Garcetti v. Ceballos, 541 U.S. 410 (2006) which denies constitutional protection to speech that occurs pursuant to official duties. Courts reviewing a free speech claim consider (1) whether the speech was made pursuant to an employee's official duties; (2) whethe rthe speech was on a matter of public concern; (3) whether the government's interest, as employer, is promoting the the efficiency of the public's service is sufficient to outweigh the plaintiff's free speech interests; (4) whether the protected speech was a motivating factor in the adverse employment decision; and (5) whether the defendant would have reached the same employment decision in the absence of protected conduct.

Shepard v. Budnick, 300 Fed. Appx. 832 (11th Cir. 2008, unpublished). Warrantless entry into the plaintiff's home violated his Fourth Amendment rights, and the law clearly prohibited such conduct, so defendants are not entitled to qualified immunity. Officers went to Shepards house to arrest him for lewd and lascivious conduct with a child and contributing to the delinquency of a minor. Shepard answered the door and asked"Who's there?" One officer responded that it was the police department and they were there to arrest Shepard. Shepard opened the door and asked officers if they had a warrant. They did not answer him, but grabbed him by the arms, backed him six feet into the residence and sat him on a couch, where they arrested him. Shepard filed a civil suit agains officers. The district court granted summary judgement. The 11th Circuit reversed, holding that warrantless home entry in the absence of exigent circumstances violated clearly established law.

Sandage v. Bd. of Commissioners of Vandenburgh County, 548 F3d 595 (7th Cir. 11/24/08). A county work release inmate harassed, then murdered a woman and two other people before committing suicide. Their heirs sued the county claiming the sheriff's failure to act on the woman's complaint and revoke work release deprived the plaintiffs of due process. The Circuit affirmed dismissal, finding no constitutional right to be protected by the government against private violence in which the government is not complicit. The record showed the danger tot he plaintiffs was created by the prisoner alone.

Buckley v. Haddock, ___ F.3d ___ (11th Cir. No. 07-10988, unpublished, filed 09/09/08). Use of a taser against a passive resister did not constitute excessive force. Officer stopped a driver for speeding. After the driver refused to sign the citation and was told he would be arrested if he did not sign, the driver was handcuffed and being led to the patrol car. The driver became despondent and made statements like, "my life would be better if I was dead." He dropped to the pavement and would not get up. The officer drive-stunned him three times in an effort to get him to get up. The district court held the force was excessive. The 11th Circuit reversed, finding three facts made the force seem reasonable: (1) the incident occurred at night on the side of a highway with considerable passing traffic; (2) the deputy could not complete the arrest – that is, truly control Plaintiff -- because Plaintiff was resisting, and (3) the deputy resorted to using the taser only after trying to persuade Plaintiff to cease resisting, after attempting to lift Plaintiff, and after repeatedly and plainly warning Plaintiff that a taser would be used and then giving Plaintiff some time to comply. No constitutional basis exists for requiring two or more officers to make routine arrests, even if deploying more officers might result in less force actually being used. See Menuel v. City of Atlanta, 25 F.3d 990, 996-97 (11th Cir. 1994) ("'The Fourth Amendment does not require officers to use the least intrusive or even less intrusive alternatives in search and seizure cases. The only test is whether what the police officers actually did was reasonable.'" (quoting Plakas v. Drinski, 19 F.3d 1143, 1149 (7th Cir. 1994)). In doing so, the court noted the reason for arrest was relatively minor, but credited the government "with a significant interest in enforcing the law on its own terms, rather than on terms set by the arrestee. The government has an interest in arrests being completed efficiently and without waste of limited resources; police time and energy that may be needed elsewhere at any moment."

http://www.ca11.uscourts.gov/unpub/ops/200710988.pdf

Weigel v. Broad, 544 F.3d 1143 (10th Cir. 2008). Officers were not entitled to qualified immunity where they engaged in excessive force and caused decedent's in-custody death from positional asphyxia. Troopers were u-turning to go Northbound on I-25. Weigel ran into the back of one of them. Troopers smelled alcohol on his breath, and were taking him to their patrol car for field sobriety testing. Weigel ran out into traffic, getting hit by a van's mirror. Then, one of the troopers tackled Weigel in a ditch and the fight was on. Weigel fought violently, including attempted gun grabs. Two troopers and several citizens eventually restrained Weigel, one by putting weight on his back while Weigel was prone and a citizen laid on his legs. Weigel expired of cardiac arrest. The majority held: 1. There was evidence that for three minutes troopers subjected decedent to force that they knew was unnecessary to restrain him and that a reasonable officer would have known presented a significant danger of asphyxiation and death, constituting unreasonable use of force under the Fourth Amendment; and 2. The law they violated was clearly established at the time of the incident. Obrien dissents, saying the majority's opinion sounds too much like negligent tort law. He also contends the majority's analysis fails to consider the totality of the circumstances because it makes no allowance fo the trooper's assessment of the amount of force required. He also criticized the majority for failing to consider the trooper's reactive force in view of Weigel's unprovoked aggression.

http://ca10.washburnlaw.edu/cases/2008/10/05-8094.pdf

Rhoten v. Dickson, 40 Kan.App.2d 433, 192 P.3d 679 (2008). When discovery revealed that Bruce Dickson, who struck Danielle Rhoten's car was not aware a Topeka police officer was chasing him, the federal court dismissed Danielle Rhoten's civil rights complaint against The City of Topeka and Lieutenant Frank Pase, who was attempting to catch up, but was not pursuing Dickson. The federal judge found no causal connection between the police officer's acts and Rhoten's injury. After that ruling, the federal court declined to hear Rhoten's state negligence claims, and she filed a lawsuit against the City and the officer in Shawnee district court. The district court dismissed her suit on the basis of res judicata, sometimes called claim preclusion, and collateral estoppel, also known as issue preclusion. The Court of Appeals affirmed, finding that the lack of causation finding in the federal action bars a proceeding in a negligence action.

http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2008/20080926/98837.htm

Keylon v. City of Albuquerque, 535 F.3d 1210 (10th Cir. 2008). In a 42 U.S.C. section 1983 action alleging that plaintiff's Fourth Amendment rights were violated when she was arrested without probable cause for concealing her identity, denial of post-trial motion by plaintiff after a jury found defendant-officer not liable is reversed where, since there were no disputed issues of material fact regarding whether the officer had probable cause to arrest, the district court erred in denying plaintiff judgment as a matter of law and in submitting the question of qualified immunity to the jury. Officers were investigating an alleged criminal damage case. Keylon was identified as the suspect's mother. An officer asked her for the son's date of birth. Keylon said she did not know. The officer determined she was lying, demanded ID from her, and then arrested her for concealing her identity in violation of a statute prohibiting "resisting or abusing a . . peace officer in the lawful discharge of his duties." Finding there was no reasonable suspicion to suspect that Keylon was violating an ordinance, the Circuit held there was no probable cause for her arrest and the issue of qualified immunity should not have been submitted to the jury.

http://ca10.washburnlaw.edu/cases/2008/08/07-2071.pdf

Vondrak v. City of Las Cruces, 535 F.3d 1198 (10th Cir. 2008), cert. denied 129 S.Ct. 1003 (2009). In an action brought under 42 U.S.C. section 1983 against defendants-officers and city claiming illegal arrest, excessive force, inadequate medical attention, and failure to train city's police officers adequately, partial denial of summary judgment for defendants based on qualified immunity is affirmed in part and reversed in part where: 1) defendant-officer was entitled to qualified immunity on an illegal arrest claim as plaintiff's statement that he "had one beer three hours ago" provided her with reasonable suspicion to conduct field sobriety tests, or at the very least provided her with "arguable reasonable suspicion" entitling her to qualified immunity; but 2) qualified immunity was properly denied on an excessive force claim for unduly tight handcuffing. Officers were conducting a sobriety check lane. Vondrak drove into the check lane and admitted the statement above. The officer conducted field sobriety tests, and Vondrak stated he probably could not do the one-legged stand even if he had never had a drink. Vondrak exhibited several clues on both it and the walk and turn test, as well as the horizontal gaze nystagmus test, and was arrested. The breath test was 0.00, confirmed by a later blood test. Depending on who you believe, Vondrak complained about tight handcuffs for the 1.5 to two hours he was in custody. He was diagnosed with nerve damage to his wrists, which affected his work as an orthodonitist. Finding that Vondrak had a clearly established constitutional right to be free from overly-tight handcuffing, the Circuit held that the officer's qualified immunity claim should have been denied.

http://ca10.washburnlaw.edu/cases/2008/08/07-2148.pdf

Wellhausen v. University of Kansas, ___ Kan.App.2d ___, ___ P.3d ____ (No. 98,663, filed 8/8/08). KU had no duty to protect or warn of known, obvious dangers. Eric Wellhausen climbed out the window of his 7th Story room in Oliver Hall to stand on a two-foot wide concrete ledge about 5 feet below the window. He fell and died, with a bac of 0.16. The district court properly granted summary judgment based on discretionary act immunity under K.S.A. 75-6104(e), and design immunity under K.S.A. 75-6104(m).

http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2008/20080808/98663.htm

Amundsen v. Jones, ___ F.3d ___ (10th Cir. No. 06-4310, filed 7/15/2008). A Utah deputy saw a vehicle weaving between lanes and change lanes without signaling. The deputy stopped the vehicle, and noticed the driver had constricted pupils. The expiration date on the registration did not match the one on the license plate. The deputy asked the driver to step out to note this difference. While getting out the driver stumbled. The deputy then administered roadside sobriety tests, then arrested the driver for DUI. She transported her to the station where breath, urine and blood were collected. All were negative for alcohol. The driver was charged, but all charges were later dismissed. The driver then sued the deputy for an unreasonable search and seizure, as well as violation of her due process and equal protection rights. The district court denied summary judgment in part, reasoning that a jury could find that the deputy lacked reasonable suspicion and the sobriety tests exceeded the scope of the stop. The Circuit reversed, noting the issue is whether an improper lane change, standing alone, is sufficient to create reasonable suspicion of intoxication. The Circuit held that repeated weaving, compared with isolated weaving, will support a stop, distinguishing the de minimis weaving at issue in United States v. Gregory, 79 F.3d 973, 978 (10th Cir. 1996)(isolated incident of crossing into another lane) and United States v. Lyons, 7 F.3d 973, 976 (10th Cir. 1993)(weaving within its lane, without more, is not reasonable suspicion for a stop). Since there was reasonable suspicion of DUI, the roadside sobriety tests did not exceed the reasonable scope of the stop, and later toxicology testing was consensual, Therefore, the district court should have granted the deputy summary judgment.

http://ca10.washburnlaw.edu/cases/2008/07/06-4310.pdf

Exxon Shipping Co. v. Baker, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 07-219, filed 6/25/08). Although the jury awarded $5 billion in punitive damages against Exxon (reduced on appeal to$2.5 billion), the amount was still excessive and the court limits punitive damages to equal compensatory damages, $500 million.

http://supct.law.cornell.edu/supct/html/07-219.ZO.html.

Wilkins v. DeReyes, ___ F.3d ___ (10th Cir. No. 06-2245 and 06-2260, filed 6/13/2008). Two gang members sued Albuquerque detectives claiming they were maliciously prosecuted for murder based on fabricated evidence. The gang members claimed the detectives coerced fellow gang members into implicating the plaintiffs in a quadruple homicide. Both plaintiffs were prosecuted, but both cases resulted in a mistrial due to a hung jury. The defendants claimed the plaintiffs' action was barred by the statute of limitations and qualified immunity. The district court denied their motion and defendants appealed. The 10th Circuit affirmed, holding the facts alleged by the plaintiffs established malicious prosecution resulting from an alleged unreasonable seizure. Although arrested pursuant to legal process (arrest warrants), a cause of action for malicious prosecution (as opposed to false arrest or false imprisonment) will lie if a plaintiff can prove (1) defendant caused the plaintiff's continued confinement or prosecution (2) the original action terminated in favor of the plaintiff; (3) no probable cause supported the original arrest, continued confinement or prosecution; (4) the defendant acted with malice; and (5) the plaintiff sustained damages. The arrest warrants were based solely on the alleged coerced statements, and if those statements were false, there was nothing left in the affidavits to support probable cause. Although later information added to probable cause, it was not included in the affidavits for arrest warrants and will not be considered by the Court. Also, cases are favorably terminated by the formal abandonment of the proceedings by the public prosecutor combined with judgment by the prosecutor the case could not be proven beyond a reasonable doubt. The law was clearly established that probable cause depends on reasonably trustworthy information, and that false statements in an affidavit violate the Fourth Amendment.

http://ca10.washburnlaw.edu/cases/2008/06/06-2245.pdf

Heston v. City of Salinas, C 05-03658 JW, U.S. District Court, Northern District of California (San Jose, 6/6/08). Taser International Inc., the largest stun-gun maker, lost a $6.2 million jury verdict over the death of a California man who died after police shot him multiple times with the weapon. The defeat is the first for Taser in a product- liability claim. A San Jose, California, jury said Taser had failed to warn police in Salinas, California, that prolonged exposure to electric shock from the device could cause a risk of cardiac arrest. The jury awarded $1 million in compensatory damages and $5.2 million in punitive damages to the estate of Robert Heston, 40, and his parents. The jury cleared the police officers of any liability. Taser previously won two trials, one over claims by a police officer injured in a training accident and the other involving a death in custody. Taser has settled at least 10 cases involving injuries to police officers during training, company lawyer Doug Klint told Bloomberg News last year. Taser said it will appeal the verdict. The compensatory damage verdict will be reduced by the jury's finding that Heston was 85 percent responsible for his death. Heston died on Feb. 20, 2005, after his father had called Salinas police because his son was "acting strangely,'' and seemed to be on drugs," according to the lawsuit complaint. Salinas police shot Heston multiple times with the stun-gun, continuing to discharge their Tasers into him until he stopped moving, the lawsuit claims. Heston went into cardiac arrest and died. His parents sued Taser, alleging failure to warn of the dangers of the weapon, and Salinas police officers, claiming excessive force. The jury "exonerated the police because they said the police didn't know repeated exposures could kill someone." Use of the Taser on Heston didn't cause his death. Heston fit the well established symptom pattern for methamphetamine intoxication and associated excited delirium.

Engquist v. Oregon Dept. Of Agriculture, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 07-474, filed 6/9/2008). Petitioner Engquist, an Oregon public employee, filed suit against respondents--her agency, her supervisor, and a co-worker--asserting, inter alia, claims under the Equal Protection Clause: She alleged she had been discriminated against based on her race, sex, and national origin, and she also brought a so-called "class-of-one" claim, alleging that she was fired not because she was a member of an identified class (unlike her race, sex, and national origin claims), but simply for arbitrary, vindictive, and malicious reasons. The Supreme Court held the class-of-one theory of equal protection does not apply in the public employment context.

http://www.law.cornell.edu/supct/html/07-474.ZS.html

Archuleta v. Wagner, ___ F.3d ___ (10th Cir. No. 07-1108, filed 04/29/2008). Jail deputy was not entitled to qualified immunity for performing a strip search of a woman jailed on an invalid warrant for someone else. Archuleta was arrested on a warrant for "DV-harassment"meant for Phyllis Rivera, a lesbian Hispanic female, 42-42 years old. Archuleta, a 46-year old mother of nine, was arrested after a traffic stop. She was frisked at the scene, then twice more at the jail, before defendant strip-searched her. Archuleta claimed mistaken identity, and the defendant at one point allegedly said "this isn't her," when Archuleta did not have the moles and tattoos identified in the jail's computer files, and also allegedly stated that she knew Archuleta was innocent. Archuleta began lactating while being force to stand naked and defendant belittled her and ordered her to put her arms down when she attempted to cover up. Finding no reasonable suspicion to suspect defendant was armed and that she would not be put in general population, the Circuit held that a strip search violated Plaintiff's constitutional rights, those rights had been clearly established since at least January 24, 1991, and defendant was not entitled to qualified immunity.

http://ca10.washburnlaw.edu/cases/2008/04/07-1108.pdf

Potts v. Board of County Commissioners of Leavenworth County, Kansas, ___ Kan.App.2d ___, ___ P.3d ___ (No. 97828, filed 2/22/2008). An elderly lady fell and refused medical treatment. She died two weeks later. Her heirs sued the county and the EMTs alleging they had a duty under their protocols to transport the elderly lady against her will and in view of a durable power of attorney. The district court granted summary judgment. The Court of Appeals affirmed, applying the public duty doctrine. It held the EMTs did not owe a special duty based on the County's protocols.

http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2008/20080222/97828.htm

Ali v. Fed. Bureau of Prisons, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 06-9130, filed 1/22/2008). In a case involving the scope of 28 U.S.C. section 2680, which carves out certain exceptions to the United States' waiver of sovereign immunity for torts committed by federal employees, the Court rules that section 2680's broad phrase "any other law enforcement officer" covers all law enforcement officers, and not just law enforcement officers enforcing customs or excise laws. In this case, the prisoner plaintiff sued correctional officers who allegedly lost plaintiff's property when transferring him from one prison to another.

http://supct.law.cornell.edu/supct/html/06-9130.ZO.html

Clark v. Edmunds, ___ F.3d ___ (10th Cir. No. 07-4029, filed 1/23/2008). The district court properly granted the Sheriff summary judgment on a 14th amendment excessive force claim. The Sheriff was attempting to take plaintiff's daughter into protective custody based on a suicide threat. Plaintiff turned towards the Sheriff which he interpreted as a threatening action, and he pushed her out of the way. She fell over some furniture and alleged significant, permanent and disabling injuries. The 10th Circuit held the Sheriff's actions were reasonable based on the circumstances, and did not shock the conscience of the court, applying County of Sacramento v. Lewis, 523 U.S. 833 (1998). It held the claim was properly considered under the 14th amendment since the sheriff was not intending to take the plaintiff into custody.

http://ca10.washburnlaw.edu/cases/2008/01/07-4029.pdf

Estate of Larsen v. Murr, ___ F.3d ___ (10th Cir. No. 06-1094, filed 1/2/2008). Officers responded to a late-night 911 call from Larsen who said he was going to "kill someone or himself." Police arrived and found Larsen on the front porch holding a large knife with a blade about one-foot long. Larsen failed to comply with four commands to drop the knife, then raised it over his shoulder and took a step or steps towards an officer on the sidewalk six steps below the front porch. The officer fired twice, hitting Larsen in the chest and killing him. Larsen's estate sued the Denver Police for excessive force and failure to train. The district court granted the defendants summary judgment. The Circuit affirmed, quoting a New York case stating that "a reasonable officer need not await the 'glint of steel' before taking self-protective action; by then it is 'often . . . too late to take safety precautions.'"

http://ca10.washburnlaw.edu/cases/2008/01/06-1094.pdf

Crimes Against Officers

State v. Johnson, ___ Kan.App.2d ___, ___ P.3d ____ (No. 96,111filed 8/29/08). The defendant was properly convicted of felony obstruction where the officers thought they were investigating a forgery involving over $500.00, even though it was eventually charged as a false information, also a felony. Merriam officers were called to the Home Depot when defendant was trying to pass a bad check for $483. The manager informed the officer that the defendant tried to buy merchandise worth "approximately $500," with a bad check. When an officer approached the defendant, he took off running and failed to comply with verbal commands to stop and get on the ground. The Court held the issue was controlled by State v. Hudson, 261 Kan. 535, 931 P.2d 679 (1997), and distinguished State v. Seabury, 267 Kan. 431, 985 P.2d 1162 (1999).

http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2008/20080829/96111.htm

State v. Hawkins, ___ Kan.App.2d ___, ___ P.3d ___ (No. 97,657, filed 7/28/2008). Off-duty officers were working at a restaurant in uniform. They responded to a fight in the parking lot. Hawkins approached one of the officers and shot at him, then ran. Officers gave chase and eventually shot Hawkins in the back. Hawkins was convicted of aggravated assault of an officer both as an individual and as an officer, and criminal possession of a firearm. Hawkins alleges the court's response to a jury question was improper, and alleges the convictions were multiplicitious. The court, responding to a jury question about whether the officer had to be the target of the assault (as opposed to a car), said, "To be guilty of aggravated assault someone's act must have been intentional. The intentional act must have placed another in reasonable apprehension of immediate bodily harm." The Court of Appeals reversed, holding that this explanation eliminated the general intent element of the crime - to place someone in reasonable apprehension of immediate bodily harm. It affirmed on the multiplicity issue, finding that Hawkins first pointed and fired a gun toward the officer as he and several others stood outside in front of the crowded restaurant. Shortly thereafter, the officers chased Hawkins down the street, repeatedly identifying themselves as police officers as they commanded Hawkins to stop. As the chase continued, Hawkins turned around and acted as if he was going to shoot at one of the officers. Judge Leben dissented on the issue of whether the district court must resentence the defendant after one of the underlying convictions has been reversed.

http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2008/20080725/97657.htm

Cruel & Unusual Punishment

Kennedy v. Louisiana, ___ U.S. ___, 128 S.Ct. 2641, ___ L.Ed.3d ___ (No. 07-343, filed 6/25/08, modified and reh. denied 10/01.08). Patrick Kennedy raped his then-8-year-old stepdaughter. A jury convicted him and sentenced him to death under a state statute authorizing capital punishment for the rape of a child under 12 years of age. See La. Stat. Ann. §14:42 (West 1997 and Supp. 1998). The Court holds the statute unconstitutional, and declares that imposing the death penalty where the crime did not result, and was not intended to result, in the death of the victim violates the Eighth and Fourteenth Amendments.

http://supct.law.cornell.edu/supct/html/07-343.ZO.html

Baze v. Rees, ___ U.S. ___, 128 S.Ct. 1520, ___ L.Ed.3d ___ (No. 07-5439, filed 4/16/2008).

Kentucky's three-drug lethal injection protocol does not violate the Eighth Amendment.

http://supct.law.cornell.edu/supct/search/display.html?terms=baze&url=/supct/html/07-5439.ZO.html

Discovery

United States v. Wittig, ___ F.Supp. 2d ___ (No. 03-40142-JAR, filed 6/12/08). There are three obstacles to issuance of a Rule 17(c) subpoena: relevancy, admissibility, and specificity. Specificity is the most difficult hurdle to overcome. "The specificity requirement ensures that Rule 17(c) subpoenas are used only to secure for trial certain documents or sharply defined groups of documents." "The specificity requirement also prevents the moving party from using the Rule 17(c) subpoena as a license for what the Supreme Court . . . decried as a 'fishing expedition to see what may turn up.'"

http://www.ksd.uscourts.gov/opinions/0340142-929.pdf

DL Suspension

Martin v. Kansas Dept. of Revenue, 285 Kan. 625, 176 P.3d 938 (Kan. 2008)(affirming Martin v. Kansas Department of Revenue, 36 Kan.App.2d 561, 142 P.3d 735 (2006)). Reasonable suspicion for a stop is not an issue to be determined in an administrative driver's license suspension proceeding for failure of a breath test. The exclusionary rule does not apply to a administrative drivers license suspension hearing, even if the stop was illegal. The deterrent effect of the rule would be minimal and cannot outweigh the remedial imperative of preventing alcohol-and/or drug impaired drivers from injury or killing themselves or others. Stop was for only two of three brake lights being operational.

http://www.kscourts.org/Cases-and-Opinions/opinions/supct/2008/20080201/94033.htm

DUI

State v. Pollman, 41 Kan.App.2d 20, 204 P.3d 630 (No. 93,947, unpublished, filed 11/21/08, reversed 286 Kan. 881, 190 P.3d 234, decision on remand filed 11/21/08, ordered published 03/04/09). Use of a non-approved PBT device violates K.A.R. 28-32-6 and is inadmissible. Additionally, without the PBT, there were insufficient facts to conclude there was probable cause to arrest for DUI. Pollman and his wife were riding motorcycles through McPherson. Once the wife failed to signal a turn. An officer stopped her and her husband also pulled over. The officer told him to move along, but he decided to stay and play lawyer. The officer smelled alcohol on the wife's breath and began performing a DUI investigation on her. The husband refused to step away when asked. Another officer smelled the odor of an alcoholic beverage on the husband's breath, and he admitted he had been drinking, although he didn't say how much or how long ago. After concluding investigation of the wife, the investigating officer wanted to visit with the husband about his obstruction, asked the husband for ID. Then the back-up officer told him that the husband had been drinking and needed to be checked. The husband admitted drinking a "few beers." The officer gave him a PBT showed .11, then performed FSTs. A later blood test showed a BAC of .10.

http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2008/20081121/93947.htm

State v. Johnson, ___ Kan.App.2d ___, ___ P.3d ____ (No. 99102, filed 12/31/08). In a felony DUI case, the court reversed a jury verdict due to the judge's failure to ask the jury if they agreed on a guilty verdict because K.S.A. 22-3421 requires such an inquiry and there may have been a question whether the verdict represents the agreement of the individual jurors.

http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2008/20081231/99102.htm

State v. Garcia, ___ Kan.App.2d ___, ___ P.3d ____ (No. 99,135, filed 10208). PIK Crim 3d 70.02 which tells a jury they can assume the defendant is under the influence of alcohol if they are above 0.08 is an accurate statement of the law and is not clearly erroneous. Additionally, the district court did not abuse its discretion by shutting down a defense opening statement focusing on the weight to assign to the prosecution's evidence. Opening is to talk about the expected evidence, not the weight to be given to it.

http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2008/20081126/99135.htm

State v. Bussart-Savaloja, ___ Kan.App.2d ___, ___ P.3d ____ (No. 98,527 filed 12/05/08). Barker v. Wingo, 407 U.S. 514 (1972) applies to alleged due process violations in appeal delays. Two factors weight in favor of a due process violation (inordinate delay, reason for delay) and two weight against (first assertion and prejudice). Here the notice of appeal was filed 07/08/05 but appellate counsel was not notified of her appointment until 01/11/07. Overall there no due process violation. Also, admission of a blood test refusal pursuant to K.S.A. 8-1001(i) does not violate a defendant's rights under the Fourth Amendment. Additionally, prior convictions enhancing a sentence do not have to be proved to a jury beyond a reasonable doubt.

http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2008/20081205/98527.htm

State v. Wenzel, 39 Kan.App.2d 194, 177 P.3d 994 (2008), affirmed on other grounds sub nom. State v. Phillips, 289 Kan. 28, 210 P.3d 93 (2009). There is no evidentiary requirement the instrument operator have separately reviewed the manufacturer's operating manual for the instrument because any significant requirements of that manual should be incorporated into the KDHE's testing procedures. This manual is not relevant to the operation or certification requirements of the instrument and therefore should not be discoverable.

http://www.kscourts.org/Cases-and-Opinions/opinions/supct/2009/20090619/96754.pdf

State v. Dukes, 38 Kan.App.2d 958, 174 P.3d 914 (2008), aff'd 290 Kan. 485, 231 P.3d 558 (2010). Documents showing the driving record of a defendant certification or calibration of a breath-test instrument or certification of the instrument operator do not constitute testimonial evidence under Crawford v. Washington, 541 U.S. 36, 153 L. Ed. 2d 177, 124 S. Ct. 1354 (2004), and, if otherwise admissible, may be offered without an accompanying witness for cross-examination. Also, if a court imposes more than a minimum fine, it must make explicit findings pursuant to K.S.A. 21-4607(3) showing it has considered the burden of the fine given the defendant's financial circumstances. See State v. Shuster, 17 Kan.App.2d 8, Syl. ¶ 2, 829 P.2d 925 (1992).

http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2008/20080118/96563.htm

Employment & Discipline

Carney v. City & County of Denver, ___ F.3d ___ (10th Cir. No. 06-1490, filed 07/24/08). In an action raising claims of racial discrimination and retaliation under 42 U.S.C. section 1981 brought by plaintiff-black female who sought employment as a police officer, summary judgment for defendant-Denver is affirmed where plaintiff failed to produce sufficient evidence to survive summary judgment on the issues of whether the alleged discrimination and retaliation she experienced were wrought by a municipal custom.

http://ca10.washburnlaw.edu/cases/2008/07/06-1490.pdf

Orr v. City of Albuquerque, ___ F.3d ___ (10th Cir. No. 07-2105, filed 7/8/08)(Orr II). Plaintiffs presented enough evidence to show that Defendants' asserted reasons for applying a sick leave first and disallowing use of compensatory time policy was a pretext for discrimination and violated their rights under the Pregnancy Discrimination Act, 42 U.S.C. § 2000e(k). Evidence of restoring another similarly situated individual's sick leave in the past was admissible to show contradictory behavior that seems to suggest some degree of confusion and mismanagement. See Salguero v. City of Clovis, 366 F.3d 1168 (10th Cir. 2004).

http://ca10.washburnlaw.edu/cases/2008/07/07-2105.pdf

Seegmiller v. LaVerkin City, Utah, 528 F.3d 762 (10th Cir. 2008). A city's decision to privately reprimand a police officer for her off-duty sexual conduct was reasonably related to police department policies and did not violate the constitution. Officer Johnson attended an out-of-town training seminar paid for in part by the City, and had an affair with another officer from a different department. Her angry, soon to be ex-husband (who was subject to a restraining order at some point), first alleged she was raped, but after learning the sex was consensual, became incensed by the City’s failure to discipline her for this conduct and also falsely accused her of having an affair with the City’s police chief, Kim Seegmiller. The City Council placed both Johnson and Seegmiller on administrative leave while it independently investigated the allegations. Washington County also asked Ms. Johnson to step down from her SWAT Team position until the matter was cleared up. News of the matter appeared on the front page of the local newspaper and was broadcast on radio and television stations throughout the state. Four days into the forced leave, the angry, soon to be ex-husband recanted his allegations about Johnson's alleged affair with Chief Seegmiller, but they remained on leave until the next council meeting. In the meantime, the department's own investigation confirmed Johnson's affair with the other officer and resulted in a reprimand for her failure to keep her private "unsullied as an example to all and [to] behave in a manner that does not bring discredit to [the officer] or [the] agency." Johnson alleged the discipline was a substantive due process violation and violated her fundamental liberty interest "to engage in a private act of consensual sex." Rejecting a "shocks the conscious" test, the 10th Circuit, using rational basis review, held that Johnson failed her burden to show the governmental act complained of does not further a legitimate state purpose by rational means. "It is well-settled that a police department may, "in accordance with its well-established duty to keep peace, [place] demands upon the members of the police force . . . which have no counterpart with respect to the public at large." Kelley v. Johnson, 425 U.S. 238, 245 (1976); see also Shawgo v. Spradlin, 701 F.2d 470, 483 (5th Cir. 1983) (holding, under rational basis review, that a police department’s prohibition of off-duty dating and cohabitation did not violate police officer’s rights). The Court also rejected Johnson's "negligent breach of privacy," claim because there was no evidence a city official made the allegations a matter of public record or discussion.

http://caselaw.lp.findlaw.com/data2/circs/10th/074096p.pdf

Zoellner v. Civil Service Board of Leavenworth County, ___ Kan.App.2d ___, ___ P.3d ___ (No. 98037, filed 5/16/08). The sheriff fired a deputy that shot a dog several times, concluding the force was excessive. The civil service board affirmed the termination, but held the former employee should be transferred to a comparable position in the Jail Division. The sheriff appealed to district court, arguing that the Board had exceeded its authority. The district court granted the sheriff summary judgment. The Court of Appeals affirmed, holding that pursuant to K.S.A. 19-4327(d)(3), when a county civil service board sustains a sheriff's dismissal of a deputy, it does not have the authority to require the sheriff to rehire the deputy, create a position for the dismissed deputy, or force another entity to hire the dismissed deputy. "Department" does not mean "different division" in the same sheriff's office.

http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2008/20080516/98037.htm

Evidence

Herring v. United States, 555 U.S. ___, 129 S.Ct. 695, 172 L.Ed.3d 496 (No. 07-513, filed 01/14/09). An investigator from Coffee County in Alabama had the warrant clerk from his Sheriff's Office call the warrant clerk at the Dale County Sheriff's Office to determine if Herring, who had been at the Coffee County Sheriff's Office dealing with an impounded vehicle, had an active warrant. The warrant clerk indicated that Herring did in fact have an active warrant in Dale County. The Coffee County warrant officer asked the clerk from Dale County to pull the warrant due to the fact that the investigator was going to pick up Herring on the warrant. The information was relayed to the investigator who immediately arrested Herring and searched him incident to arrest. This search led to the recovery of methamphetamine and a firearm. Shortly after the search and within 15 minutes of the actual call to Dale County, the Dale County clerk called back to Coffee County and reported that there was a mistake and that there was no longer a warrant for Herring. Does the exclusionary rule apply to the methamphetamine and gun that were seized as the result of a mistaken arrest but where the arresting officer was relying on information from another law enforcement agency? The Supreme Court, in a 5-4 decision, held the evidence was admissible under the good-faith rule of United States v. Leon, 468 U. S. 897. The Court reasoned that when police mistakes leading to an unlawful search are the result of isolated negligence attenuated from the search, rather than systemic error or reckless disregard of constitutional requirements, the exclusionary rule does not apply. The fact that a search or arrest was unreasonable does not necessarily mean that the exclusionary rule applies. Illinois v. Gates, 462 U. S. 213 . The rule is not an individual right and applies only where its deterrent effect outweighs the substantial cost of letting guilty and possibly dangerous defendants go free. Leon, 468 U. S., at 908-909. To trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system. The pertinent analysis is objective, not an inquiry into the arresting officers' subjective awareness.

http://www.law.cornell.edu/supct/html/07-513.ZS.html

State v. Yenzer, 40 Kan.App.2d 710, 195 P.3d 271 (2008). A HIPAA violation does not provide for the suppression of evidence as a remedy or sanction. Yenzer went to a law office to pay a debt, and volunteered to the legal assistant that she had a warrant and would be going to a dentist later that day. The dutiful legal assistant called Lawrence police, who were waiting for Yenzer. The receptionist at the dentist's office notified the officer that Yenzer canceled her appointment and rescheduled for one week later. The officer again waited for her. When she showed up, the officer asked for ID. Yenzer gave a false name, then ran from the officer, resulting in her being convicted of obstruction. The Court said that while it did not condone the disclosure of information by the dentist's receptionist, Yenzer did not make a constitutional claim regarding suppression, and nothing in HIPAA requires suppression for a HIPAA violation.

http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2008/20081107/98800.htm

State v. Risinger, ___ Kan.App.2d ___, ___ P.3d ____ (No. 98,218, filed 10/24/08). Having 15 online conversations with what he thought was a 14-year old girl in which he said he wanted to make out, feel around and have oral sex, coupled with driving to her alleged house and knocking on her door was sufficient to establish attempted indecent liberties with a child. Defendants acts went beyond mere preparation and were an overt act toward commission of the crime.

http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2008/20081024/98218.htm

United States v. Schene, ___ F.3d ___ (10th Cir. No. 07-6177, filed 9/29/08). A conviction for knowingly possessing material that contained an image of child pornography that was produced using materials that had been mailed, shipped, or transported in interstate commerce is affirmed where: 1) the evidence was sufficient to show that the images of child pornography were "produced" using materials that had been mailed, shipped, or transported in interstate commerce; 2) the evidence was sufficient to support the conviction; 3) the district court did not reversibly err in admitting into evidence certain testimony regarding gender and homosexuality; and 4) the district court did not abuse its discretion by admitting into evidence images of child pornography, and related exhibits. Agents found evidence on defendant's computer that showed images of young boys, some engaged in homosexual acts with others or with adults. Emails and screen names indicated that "outdoorguy104166" was involved in emailing, copying and viewing these images and files, as well as visiting gay websites. The defendant denied any knowledge of these images on his hard drive, and the government had no direct evidence that defendant was the one that viewed them. Defendant lived with his wife and she had an account on the computer. In addition to denial, defendant defense focused on the fact that his wife could not be ruled out as a suspect. Agents testified that in based on their experience, they had never seen a woman trafficking in homosexual child porn.

http://ca10.washburnlaw.edu/cases/2008/09/07-6177.pdf

Giles v. California, 554 U.S. 353, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 07-6053, filed 6/25/08). Admission of a dead domestic violence victim's statements against her killer that were made three weeks prior to her murder and were unconfronted violated the Defendant's right of confrontation under Crawford v. Washington, 541 U. S. 36, 53–54 (2004). California appellate court holdings that Crawford recognized a doctrine of forfeiture by wrongdoing are incorrect. "Domestic violence is an intolerable offense. . . [b]ut for that serious crime, as for others, abridging the constitutional rights of criminal defendants is not in the State’s arsenal." "We decline to approve an exception to the Confrontation Clause unheard of at the time of the founding or for 200 years thereafter." In order for forfeiture by wrongdoing to apply, the defendant must have engaged in conduct with the design to prevent the victim's attendance at trial.

http://supct.law.cornell.edu/supct/html/07-6053.ZO.html

State v. Scott, ___ Kan.App.2d ___, ___ P.3d ___ (No. 96879, filed 2/22/2008). Defendant was charged with sale of cocaine within 1000 feet of a school. The confidential informant and the police officer were the only witnesses against the defendant. The officer either didn't tape the transaction or the taping device failed. Defendant denied selling cocaine to the CI and wished to impeach him with a pending forgery investigation in which the CI allegedly forged the defendant's checks. The Court of Appeals held that the forgery evidence should have been admitted. Even though the CI had not been convicted of the forgery and it would have been inadmissible for general impeachment under K.S.A. 60-421, it should have been admitted to show the CI's partiality, bias, motive or interest in the outcome.

http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2008/20080222/96879.htm

State v. Dukes, ___ Kan.App.2d ___, ___ P.3d ___ (No. 96,563, filed 1/18/2008). Documents showing the driving record of a defendant certification or calibration of a breath-test instrument or certification of the instrument operator do not constitute testimonial evidence under Crawford v. Washington, 541 U.S. 36, 153 L. Ed. 2d 177, 124 S. Ct. 1354 (2004), and, if otherwise admissible, may be offered without an accompanying witness for cross-examination. Also, if a court imposes more than a minimum fine, it must make explicit findings pursuant to K.S.A. 21-4607(3) showing it has considered the burden of the fine given the defendant's financial circumstances. See State v. Shuster, 17 Kan.App.2d 8, Syl. ¶ 2, 829 P.2d 925 (1992).

http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2008/20080118/96563.htm

Expungement

State v. Yrigolla, ___ Kan.App.2d ___, ___ P.3d ___ (No. 97,899, filed 1/25/2008). K.S.A. 21-4619 is the specific statute governing expungement of arrest and diversion records and controls over the more general K.S.A. 22-2410 governing expungement of arrest records without conviction. K.S.A. 22-4619 has a 5-year waiting period, while 22-2410 does not.

http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2008/20080125/97899.htm

Firearms

District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (No. 07-290, filed June 26, 2008). The following provisions - D.C. Code §§ 7-2502.02(a)(4), 22-4504(a), and 7-2507.02 - violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes. Washington banned handguns in 1976, saying it was designed to reduce violent crime in the nation's capital. The City Council that adopted the ban said it was justified because "handguns have no legitimate use in the purely urban environment of the District of Columbia." Dick Anthony Heller, an armed security guard, sued the District after it rejected his application to keep a handgun at home for protection. The U.S. Court of Appeals for the District of Columbia Circuit ruled 2-1 for Heller in March. Judge Laurence Silberman said reasonable regulations still could be permitted but said the ban went too far. The United States Supreme Court agreed with the DC Circuit. In his textual analysis of the meaning of the Second Amendment, Justice Scalia wrote, "It is always perilous to derive the meaning of an adopted provision from another provision deleted in the drafting process." ___ U.S. at ___. Later, summing up the Court's ruling, he said, "Undoubtedly, some think the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem. This is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct." ___ U.S. at ___.

            However, the "right secured by the Second Amendment is not unlimited." 554 U.S. at 626.

 

From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. . . . [N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.


Id. at 626–27 (emphases added) (citations omitted). The Court hastened to add that it had listed "these presumptively lawful regulatory measures only as examples"; the list was illustrative, "not exhaustive." Id. at 627 n.26.6 This was the first 2nd Amendment case since United States v. Miller, 307 U.S. 174 (1939).

http://supct.law.cornell.edu/supct/html/07-290.ZO.html

Wyoming v. United States, ___ F.3d ___ (10th Cir. No. 07-8046, filed 8/26/2008). A Wyoming statute which established a procedure to expunge misdemeanor convictions "for the purposes of restoring any firearm rights lost," but still allowing their use for enhancement of a later crime did not meet the definition of expungement set out in 921(a)(33)(B)(ii) and thus, is insufficient to allow someone convicted of a domestic violence misdemeanor to possess a firearm. In order to qualify as an expunged conviction under federal law, the expungement must wipe out the conviction for all purposes.

http://ca10.washburnlaw.edu/cases/2008/08/07-8046.pdf

United States v. Hill, ___ F.3d ___ (10th Cir. No. 07-3034, filed 8/22/2008). Hill's underlying conviction for criminal possession of a firearm in violation of K.S.A. 21-4201, made him a convicted felon and ineligible to carry a firearm under 18 U.S.C. § 922(g)(1), even though he only received an 11-month sentence under the sentencing guidelines. The federal statute defines qualifying convictions by looking at the possible sentence, not the actual sentence.

http://caselaw.lp.findlaw.com/data2/circs/10th/073034p.pdf

First Amendment

Thomas v. City of Blanchard, 548 F.3d 1317 (10th Cir. 2008). Thomas, a former building code inspector for the City of Blanchard, was fired after barging into a meeting between the city manager and the code director and demanding destruction of an allegedly fraudulent certificate of occupancy issued to a builder who also happened to be the mayor. Thomas alleged that his discharge was in retaliation for his reporting the suspected illegality to the state Bureau of Investigation. The district court granted defendants summary judgment finding that Thomas's statement to the OSBI was part of his professional duties and not protected under Garcetti v. Ceballos, 547 U.S. 410 (2006). The Circuit reversed, finding that reporting allegedly criminal activity was not part of Thomas' duties; was a matter of public concern; and Thomas had a clearly established right to report as a citizen. However, defendant-mayor was entitled to summary judgment as there was no evidence he personally participated in the alleged wrongful termination.

http://ca10.washburnlaw.edu/cases/2008/12/07-6197.pdf

Pagan v. Fruchey, 492 F3d 766 (6th Cir No 04-4414, June 29, 2007), cert. denied Dec 3, 2007 (No 07-420, 128 SCt 711, 169 LEd2d 554, 76 USLW 3286, 3287). Car for Sale. Resident challenged city's ban on parking private cars with "for sale" sign on public street. Held: a fifteen judge ("en banc") panel of the Sixth Circuit ruled 8 -7 that the city had not provided sufficient evidence to show the rule actually advanced the city's interests, and could not be viewed as content neutral, time place and manner rule.

Intelligence

Humphries v. County of Los Angeles, ___ F.3d ___ (9th Cir. No. 05-56467 filed 11/0508). California's maintenance of the California's Child Abuse Central Index (CACI), which is a database of known or suspected child abusers, violates the Due Process Clause of the Fourteenth Amendment because identified individuals are not given a fair opportunity to challenge the allegations against them.

http://caselaw.lp.findlaw.com/data2/circs/9th/0556467p.pdf

Interrogation

State v. Warledo, ___ Kan. ___, ___ P.3d ___ (No. 97,759 filed 8/8/08). Warledo stomped his mother to death and then set her on fire to "get rid of the evidence." A portion of the stomping was captured by the 911 call, where Warledo could be heard saying, "die, die die!" Police arrested him at the scene and transported him to the station. He was shackled and handcuffed to prevent him from hurting himself because he had been banging his head against the shield in the BAT van while waiting to be transported. Warledo was placed in an interview alone while waiting for detectives to arrive, and recorded but not monitored. About five minutes before detectives arrived, he said "I need to call a lawyer. Where's my lawyer?" After detectives arrived, they began swabbing him and collecting his clothes. Several times Warledo made voluntary statements implicating himself, saying things like "I did it, I did it. I will sign anything you want." Later he was Mirandized and repeated his confessions. The Court determined the pre-warning statements were volunteered and were not the product of custodial interrogation nor its functional equivalent. The Court also rejected Warledo's Doyle argument because the tape was redacted by both counsel and no objection was asserted at trial. The court surmised that failure to object may have been a strategy decision to support Warledo's mental illness assertion.

http://www.kscourts.org/Cases-and-Opinions/opinions/supct/2008/20080808/97759.htm

United States v. Burson, ___ F.3d ___ (10th Cir. No. 07-2197, filed 7/11/08). Despite defendant's claims that he had been up for days, was high on methamphetamine and cocaine, and did not understand what was going on around him, Defendant's statements and the video tape of the interview show that Defendant was not impaired to a substantial degree to overcome his ability to give a knowing, intelligent and voluntary waiver. The mere fact of drug or alcohol use will not suffice.

http://ca10.washburnlaw.edu/cases/2008/07/07-2197.pdf

State v. Bale, ___ Kan.App.2d ___, ___ P.3d ___ (No. 96929, filed 5/16/08). Defendant had a few drinks, then got in her car. While backing up, she ran over one of her children, killing him. Defendant became hysterical and was taken to the hospital. The officer investigating the accident smelled an odor of alcohol on her, and began reading her the implied consent advisory. While the officer was reading it, Defendant said, "yes, she was intoxicated and yes, she's responsible for the accident and that she did not mean to hurt her son." That statement was admitted at trial. Defendant claimed it should have been suppressed. The Court disagreed. It said it was either a volunteered statement, and a later similar statement was not a product of custodial interrogation. Defendant had contacted the investigating officer and set up the interview. Defendant drover herself to the police station, was taken to an interview room and told that she was not under arrest. Only one officer was in the room, and Defendant never expressed a desire to leave. The interview was not very long, and Defendant was allowed to leave at its conclusion. Under these circumstances, a reasonable person in Bale's position would not perceive that she was in custody.

http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2008/20080516/96929.htm

United States v. Cronin, ___ F.Supp.2d ___ (No. 2008)(2008 WL 836165 (D. Kan. 2008)..An officer asked a suspect to identify a fanny pack. While the officer's question went beyond questioning attendant to an investigatory detention, they were not acusatory, defendant was not separated from his friends at the time and none of the officers displayed a weapon or made physical contact with the suspect. Thus, he was not in custody for Miranda purposes.

State v. Ventris, 285 Kan. 595, 176 P.3d 920 (2008), reversed and remanded Kansas v. Ventris, 556 U.S. ___, 129 S.Ct. 1841, 173 L.Ed.2d 801 (2009), reh. denied 129 S.Ct. 2853, 174 L.Ed.2d 570, on remand 212 P.3d 162. Admission of the testimony of a under cover informant (cellmate) did not violate defendant's right to counsel under the Sixth Amendment. Ventris killed Hicks. The state used a jail plant and used his testimony in rebuttal to impeach Ventris's testimony. The Kansas Supreme Court held that statements obtained in violation of the Sixth Amendment are not admissible for any purpose. Cf. Harris v. New York, 401 U.S. 22, 91 S.Ct. 643, 28 L.Ed. 2d 1 (1971).

http://www.kscourts.org/Cases-and-Opinions/opinions/supct/2008/20080201/94002.htm

State v. Farmer, ___ Kan. ___, ___ P.3d ___ (No. 91,466, filed 2/1/2008). Farmer shot and killed one individual, and got in a fight with another. During an interview one day later, a detective told Farmer to remember that "God can forgive everything, but . . . you have to be honest." The detective also stated to Farmer that "God wants you to tell the truth." Farmer confessed, but alleged his confession was coerced. The Court disagreed. Noting the detective did not threaten Farmer if he didn't tell the truth, nor did he promise leniency if he did.

http://www.kscourts.org/Cases-and-Opinions/opinions/supct/2008/20080201/91466.htm

Juvenile Offenders

In the Matter of L.M., 286 Kan. 460, 186 P.3d 164 (2008). Juvenile offenders have a constitutional right to a jury trial.

http://www.kscourts.org/Cases-and-Opinions/opinions/supct/2008/20080620/96197.htm

Miscellaneous

Doctor John's v. Whalen, ___ F.3d ___ (10th Cir. No. 07-4131, filed 09/09/08). In an action claiming that defendant-city's ordinance regulating sexually oriented businesses violates the First Amendment, summary judgment on remand for the city is affirmed where the evidence plaintiff submitted to the district court did not cast doubt on the city's rationale for its ordinance under the burden-shifting scheme of City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425 (2002), Step 2.

http://ca10.washburnlaw.edu/cases/2008/09/07-4131.pdf

State v. Cook, ___ Kan. ___, ___ P.3d ___ (No. 98,671, filed 07/28/08). Cook, a sex offender, failed to register his proper address beginning in late 2005. On July 1, 2006, the Kansas Legislature changed violation of the registration statute from a severity-level 10 nonperson felony to a severity level 5 person felony. The state charged Cook with violating the offender registration statue on November 21, 2006. Cook convinced the district court that since the crime occurred prior to July 1, 2006, the charge should be dismissed as ex post facto. Nice try, said the Supreme Court. If the actual crime for which a defendant is being sentenced was committed after the effective date of the new statute, there is no ex post facto violation. Although Cook committed several violations of the act before the amendment, he also violated it several times afterwards. Citizens are presumed to know that the legislature has made certain conduct illegal. See Cheek v. United States, 498 U.S. 192, 199, 112 L. Ed. 2d 617, 111 S. Ct. 604 (1991) (every person is presumed to know the law); State ex rel. Murray v. Palmgren, 231 Kan. 524, 536, 646 P.2d 1091 (1982) (ignorance of law no excuse for violating law); State v. Young, 228 Kan. 355, 360, 614 P.2d 441 (1980) (all persons are presumed to know general public laws of state where they reside, as well as legal effects of their acts). "Cook argues on appeal that it would be unfair for the State to wait to charge someone guilty of a lesser crime until the legislature increases the penalty for that crime. His reasoning would appear to require the State to charge every defendant as soon as it becomes aware of criminal activity. If a sting operation were to turn up evidence that someone was smoking marijuana, the State would not be permitted to wait to acquire additional evidence showing that the individual was also dealing in heroin. In this instance, it does not violate principles of fairness for the State to delay charging an individual who continues to commit a crime or commits new crimes over a period of many months."

http://www.kscourts.org/Cases-and-Opinions/opinions/supct/2008/20080725/98671.htm

State v. Anderson, ___ Kan.App.2d ___, ___ P.3d ___ (No. 98,611, filed 7/28/2008). Offenders must register even if the Sheriff fails to tell them about it. "A familiar rule tells us that ignorance of the law is no excuse. So when the legislature criminalizes something, we may be prosecuted for it even though we didn't know it was illegal. But what happens if the legislature instructs someone to tell us about it? Can we be prosecuted if the person who was supposed to tell us slips up?" The answer is yes.

http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2008/20080725/98611.htm

United States v. Hays, ___ F.3d ___ (10th Cir. No. 07-8039, filed 5/20/2008). Wyoming's domestic battery statute, that prohibits touching "in a rude, insolent or angry manner," does not qualify as a misdemeanor crime of domestic violence that has as an element the use or attempted use of physical force, as required by 18 U.S.C. § 921(a)(33)(A). Force as used in the federal statute must be more than de minimus, and different from the meaning of force in the physics community. Judge Ebel dissents.

http://ca10.washburnlaw.edu/cases/2008/05/07-8039.pdf

Rowe v. New Hampshire Motor Transp. Ass'n, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 06-457, 2/20/2008). A federal statute that prohibits states from enacting any law "related to" a motor carrier "price, route, or service" preempts two provisions of a Maine tobacco law, which regulate the delivery of tobacco to customers within the state.

http://supct.law.cornell.edu/supct/html/06-457.ZO.html

RICO

Bridge v. Phoenix Bond & Indemnity Co., ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 07-210, filed 6/9/2008). A plaintiff asserting a RICO claim (18 U. S. C. sec.1964(c)), predicated on mail fraud need not show, either as an element of its claim or as a prerequisite to establishing proximate causation, that it relied on the defendant's alleged misrepresentations. No reliance showing is required to establish that a person has violated sec.1962(c) by conducting an enterprise's affairs through a pattern of racketeering activity predicated on mail fraud.

http://www.law.cornell.edu/supct/html/07-210.ZS.html

Search & Seizure

State v. Fitzgerald, ___Kan. ___, 192 P.3d 171 (No. 95812, filed 09/12/08). Defendant was pulled over after running stop sign. He was alone in his girlfriend’s truck. His license was suspended. When he was stopped, he immediately called his girlfriend to come to the scene and pick up the truck (apparently realizing that he would not be able to drive on since he knew he was suspended). He was placed under arrest for the DWS and patted down. He had $2,673 in cash in his pockets. He said he made $10 an hour detailing cars and the cash was to pay his rent and bills. The officer searched the car and found methamphetamine, digital scales and several small plastic bags. The girlfriend arrived. She asked if she could drive the truck away. She was told she could not until a more thorough search was performed. The officer asked if she would consent to the search of the truck and she agreed. The second search found no additional evidence, but the defendant did make some incriminating statements to a second officer who arrived on the scene. The Kansas Supreme Court determined, based on the agreement of the parties, the only possible basis for the initial search was probable cause and exigent circumstances. (There is no discussion of this being a "search incident to an arrest" since the defendant was arrested for the misdemeanor of driving on a suspended license). It found that under a totality of the circumstances there was not probable cause to support the search. The State had relied on the officer’s training and experience that large sums of money are usually associated with drug dealing, the traffic violations, the defendant’s quick telephone call to the girlfriend, the large amount of money found in his pocket and his relative modest income as supporting probable cause. The Court found that the only factor that pointed to probable cause was the amount of cash the defendant had on his person, and this factor was weak. It found that the amount of cash was low compared to that found in other cases. The arrangement of the bills was unremarkable (no special packaging). It also found that the State’s argument that the girlfriend’s later voluntary consent made the discovery of drugs inevitable was not supported by the evidence. The Court could not find that the girlfriend’s consent was inevitable had the drugs not already been found in the car. Although her consent may have been voluntary, its inevitability was not proven. Therefore, the evidence found must be suppressed.

http://www.kscourts.org/Cases-and-Opinions/opinions/supct/2008/20080912/95812.htm

United States v. Rodriguez-Rodriguez, ___ F.3d ___ (10th Cir. No. 07-2214, filed 12/23/08). There was sufficient evidence of tandem driving in this case that once the tailing vehicle was stopped and found to contain drugs (over 100 kilograms of marijuana), there was sufficient probable cause to stop the lead vehicle and arrest the driver. A New Mexico officer saw two vehicles traveling in the pre-dawn hours on a lightly-traveled New Mexico highway. A brown pickup was the trailing vehicle, was loaded down in back, and had a tag light out. A red Nissan Sentra was the lead vehicle. Both vehicles had California plates and were driving five miles per hour below the speed limit. The officer followed the vehicles for a while. While doing so, the Sentra would occasionally change lanes, look at the officer's vehicle, then return to the right lane. When the officer lit up the pickup, it did not stop right away, but continued while the Nissan sped off. Officers then radioed ahead and had another officer stop the Nissan six miles down the road. A consent search of the Nissan yielded documents linking the driver to the driver of the pickup. The Nissan driver later admitted that he and the driver of the pickup were working together to transport drugs to California. The Circuit held there was sufficient evidence of tandem driving that a stop of the pickup and the finding of drugs also supplied probable cause to stop the Sentra.

http://ca10.washburnlaw.edu/cases/2008/12/07-2214.pdf

State v. Hoffman, 40 Kan.App.2d 894, 196 P.3d 939 (2008) rev. denied ___ Kan. ___ (2009). Rural Kansas residents who have a contract with a trash hauler to enter into their curtilage and haul away the contents of a dumpster do not abandon their objective expectation of privacy in their trash [What? - don't they lose any subjective expectation when the throw stuff into the dumpster expecting that it will be hauled away?] . Greely County sheriff's deputies had climbed into a trash truck that entered defendants property seven times over several months, then searched the trash once it arrived at the county landfill. Bukaty dissents, finding the trash had been placed for collection so there was no longer a reasonable expectation of privacy.

http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2008/20081126/99755.htm

State v. Tatum, 40 Kan.App.2d 846, 196 P.3d 441 (2008). KBI agents conducted surveillance on the Overland Park store Green Circle Hydroponics and saw defendant leaving with a jug of liquid fertilizer. They later went to his residence and noted a 2d air conditioning unit for the basement and clay balls in the front planter by the porch. Officers did a knock-and-talk, and Tatum let them in, gave consent to search and confessed to growing and selling marijuana. He later claimed that consent was involuntary because agents did not inform him of his right to refuse and said he felt intimidated by the agent's assertion they already had evidence against him. Distinguishing Kermoade, the Court of Appeals held this was a voluntary encounter and consent was valid.

http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2008/20081126/98880.htm

United States v. Arrington, ___ F.3d ___ (10th Cir. 08-4018, unpublished, filed 10/14/08).

[Editor's note: Normally I write my own summaries, but Colin Wood's summary was so entertaining that I copy it here in full].

            It was a beautiful day in West Valley City, Utah. Except for the gray rain cloud over Jeremy Arrington. You see, Jeremy longed to get back together with his estranged wife, Jennifer. So, with his mother, Pansy, in tow, Jeremy traveled to Jennifer's workplace. We don't exactly know why Jeremy believed that having his mother with him might somehow bolster his argument to Jennifer that he was the only real man for her.

            Then, for a second unknown reason, Jennifer agreed to leave work and ride around with her nutty husband, as her mother-in-law rode in the back seat. Absolutely nothing good can from these facts.

            At the first stop, Jiffy Lube, and while each smoked a cigarette discussing their relationship, Jennifer quietly told Jeremy that she had been cheating on him. Jeremy nonchalantly took out a knife…..and stabbed himself in his forearm. Yeah, he stabbed……..HIMSELF! That not putting a damper on the party, the trio traveled to the mall because I guess Mom had decided it was a wonderful time to look through JC Penney's new spring collection. While Mom was inside, Jeremy walked around to the car's trunk, retrieved a gun…… and asked Jennifer to please shoot him. She respectfully declined.

Upon Mom's return to the car, she, Jeremy, and Jennifer headed for a hotel, to rent a room, and "continue their discussion." Unfortunately, upon arriving at the hotel, neither Jeremy nor Jennifer had an ID. So, Mom put up hers, and Jennifer paid for the room. Mom then left the hotel. (I was quite thankful for that last part, because I'm not sure that I could have brought myself to read the rest of the case had I believed Mom had gone to the room with the love birds).

Anyway, though Jeremy wheeled luggage to the room, Jennifer did not intend to stay long because she had to return to work. One thing led to another, and Jeremy again pulled out his gun, placing it to his head and threatened to kill himself if Jennifer left the room. Twenty more minutes went by, Jennifer left, Jeremy's head was still connected to his shoulders, and Jennifer called the cops from the parking lot. Jeremy went to the hotel's front desk, directed that Jennifer's name be taken off the guest registry, left the hotel ……..and was arrested.

The investigating officer believed he needed a search warrant for the hotel room to retrieve Jeremy's gun, but his supervisor told him that a warrant was not possible, and, since Jennifer had consented to a search of the room, the officer should simply explain the situation to the desk clerk and obtain a key to the room. The desk clerk then told the officer that Jennifer's name had been taken off the room register and refused to hand over the key. After some law enforcement blustering, a key was obtained, the room searched and two guns were seized. Jeremy moved to suppress the seizure of the guns as the fruits of an illegal search. The government said, wait a minute, Jennifer gave the officer her consent. (For some reason the government did not also argue that since Jeremy would soon bond out of jail and would return to the hotel and the guns there was an exception to the warrant rule: an immediate danger to public safety; so, we don't know what the court would have thought about that; but, a search warrant would have been much nicer).

            Anyway, the appellate panel held that since hotel guests possess a reasonable expectation of privacy, in the absence of a search warrant, a lawful search of the premises required either 1) the voluntary consent from the individual whose property is searched, or, 2) consent from a third party with either actual authority, or apparent authority, to give consent. Since Mom's name was on the room, only Mom had actual authority to consent to the search. Since Jennifer did not have mutual use of the property (she had only stayed 20 minutes), did not have a key, did not leave any personal belongings in the room, and admittedly did not plan to spend the night there, it was unreasonable for the officer to have believed Jennifer had either actual or apparent consent authority. Further, the officer knew that Jeremy and Jennifer were estranged, Jeremy had removed Jennifer's name from the registry, and though they were still married, there was no current close relationship between Jeremy and Jennifer (I know, Jennifer paid for the room, but that did not carry the day here).

            This case probably could have been argued differently, but it does stand for: 1) an officer's duty to better inquire into a third party's apparent authority before charging willy-nilly into a search; 2) bad, but funny, case law can come from events involving 3 crazy people; and, 3) supervisors don't always know the right answer.

http://ca10.washburnlaw.edu/cases/2008/10/08-4018.pdf

State v. McGinnis, 40 Kan.App.2d 620, 193 P.3d 46 (2008), affirmed, ___ Kan. ___ (No. 99217 filed 06/04/10). An Atchison Co. Sheriff's deputy was dispatched to the report of a possible stolen car dumped in/at the Missouri River. While enroute, the deputy observed a car with Missouri tags headed toward the stolen car. The deputy followed the car into a fishing area on a seldom-used dead-end road. In the dead-end area there was sufficient room for vehicles to turn around in the grass parking area and return to the main county road if a person so wished. The deputy pulled up 2-3 car lengths behind the car without activating his emergency lights. The driver was , who was by then out of his car, standing at the river and looking in the direction of the stolen car. As the deputy walked past the stopped vehicle, he noticed a 12-pack of beer in the front seat. The deputy greeted the driver, McGinnis, and had a brief, friendly conversation. The deputy immediately noticed the odor of alcohol on McGinnis, his bloodshot eyes and slurred speech. McGinnis admitted to having two beers. The deputy then requested McGinnis perform field sobriety tests to which McGinnis consented.....and promptly failed. McGinnis was arrested, and his BAC came back .12. McGinnis argued he was stopped without reasonable suspicion at the point in time the deputy pulled up behind McGinnis' car. The Court held that since the deputy did not block McGinnis' car (thus allowing a reasonable person to leave if he so wished), and did not activate the patrol car's red lights (no show of authority), the event began as a consensual encounter and only became a detention once the deputy had seen the beer in the car and the usual indicators of DUI.

http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2008/20081024/99217.htm

State v. Gross, 39 Kan.App.3d ___, 184 P.3d 978 (2008). Police officers approached a parked car and ordered the passenger to roll down her window or open her door. They parked their car parallel to the parked car so that it could not leave, and activated their emergency lights. After approaching her, the officer smelled burnt marijuana. He searched the car and found cocaine. The Court held the defendant was detained without reasonable suspicion and the evidence should have been suppressed.

http://www.kscourts.org/Cases-and-Opinions/Opinions/ctapp/2008/20080606/97444.htm

State v. Glass, ___ Kan.App.2d ___, ___ P.3d ____ (No. 98,252, filed 09/19/08). Jimmy Moore was responding to a liquor store robbery and was about one minute away when the call came out. The suspects were described as two black males armed with handguns, wearing white t-shirts, black hoodies and black gloves. Moore took a "back way" to the store and saw a vehicle headed Eastbound away from the area of the liquor store. He briefly shined his light into the vehicle and saw two black males, one wearing a white t-shirt and the other dressed in black. He turned on the vehicle and stopped it. While speaking with the driver, he noticed the passenger stuffing something between the seat and console. Moore ordered the passenger out of the vehicle, then noticed a third person in the back seat. When that passenger got out, a large sum of money fell out of his lap. All three occupants were arrested, and the cash taken in the robbery, a handgun, a black sweatshirt, two pairs of gloves and a stocking cap with eye holes cut in it were found in the vehicle. Glass alleged the officer had no reasonable suspicion to stop the car. The Court of Appeals disagreed. Having two persons generally match the descriptions of the robbers in the general area of the robbery shortly after it occurred, and it being the only vehicle in the area at the time equates to reasonable suspicion.

http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2008/20080919/98252.htm

United States v. Gambino-Zavala, 539 F.3d 1221 (10th Cir. 2008). Albuquerque police received several 911 calls complaining of 8-10 gunshots at an apartment complex at around 4:45 a.m. They went to the complex and made contact with a frantic tenant who said people in the apartment above her were firing guns. She identified two cars in the parking lot as being associated with the suspect apartment. Police knocked on the door of the suspect apartment, and eventually defendant answered. He denied there was anyone else in the apartment. Police entered "just to check and make sure that there was nobody else inside that was either injured or needed assistance." During a one to two-minute sweep, they located a shotgun and ammunition in a bedroom closet. A later search yielded more guns, ammunition and drugs. Defendant was an illegal alien and had two outstanding misdemeanor warrants. He claims the guns and drugs should have been suppressed due to an illegal entry. The Circuit held the warrantless entry and sweep were justified by the serious crime and exigent circumstances.

http://ca10.washburnlaw.edu/cases/2008/08/07-2231.pdf

State v. Morlock, 40 Kan.App.2d 216, 190 P.3d 1002 (No. 97,447, filed 8/29/08, review granted 01/22/09). A majority of the Kansas Court of Appeals hold that a Sedgwick County Deputy violated a passenger's Fourth Amendment rights by inquires about travel plans and checking the passenger for warrants, tainting the later voluntary consent to search that yielded 113 pound of marijuana. The deputy stopped a van bearing Arizona plates because it twice changed lanes without signaling. The driver, a 16-year old male, was extremely nervous. The passenger looked straight ahead during the deputy's encounter with the son and would not make eye contact with the deputy. The deputy had the driver step out, and asked him Where he was coming from, how long he'd been there and the purpose of the trip. The driver said they came from Phoenix, had been there a couple of days and went to see his dad's (the passenger's) girlfriend. The driver also stated his dad rented the van. The deputy then approached the passenger, asked for a copy of the rental agreement and asked the passenger for ID. While the passenger was looking for the rental agreement, the deputy asked him the same questions he'd asked the driver. The passenger stated they were traveling from Phoenix to Kansas City, they had been in Phoenix for 2 days, and they went there to meet a woman he had met on the internet, but they never made contact with her. The passenger produced both the rental agreement and his ID. The rental agreement indicated the van was rented in Tucson, not Phoenix. The deputy asked why they flew to Phoenix but were driving back in a rented van. The passenger stated they didn't have enough money for a return flight. The deputy noticed four duffel bag sin the cargo area of the van, which he thought was unusually large for a two-day trip. Neither the driver nor the passenger had warrants. The deputy returned the documents on the passenger side of the van, issued a warning citation, then said "have a nice day," and took a couple steps away. The deputy then asked if he could ask some questions. The passenger consented, and eventually consented to a search. The Court of Appeals held it was ok to ask where the van's occupants were coming from, but held that questions regarding the length of stay and purpose of the trip were not reasonably related to the purpose of the stop. While it was ok to ask for the rental agreement and about the Tucson/Phoenix discrepancy, the other questions were designed to probe into the passenger's personal business in the hope of uncovering suspicious activity. The Court of Appeals also held that the warrant check on the passenger violated State v. Damm, 246 Kan. 220, 787 P.2d 1105 (1990), and the impermissible extension of the scope and duration tainted the passenger's later consent. Thus, it held that all the evidence must be suppressed. Judge Leben wrote a well-reasoned dissent indicating that Illinois v. Harris, 543 U.S. 1135 (2005) and Illinois v. Caballes, 543 U.S. 405 both indicate that an officer can ask for a passenger's ID and run them for warrants. He also pointed out the total time of the traffic stop was only 12 minutes, and would have held the officer's actions were reasonable. But see State v. Jones.

http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2008/20080829/97447.htm.

United States v. Jarvi, ___ F.3d ___ (10th Cir. No. 07-3200, filed 8/21/2008). Denial of a motion to suppress evidence in a prosecution for possessing, with intent to distribute, methamphetamine is affirmed where, for purposes of the "fruit of the poisonous tree" doctrine, defendant failed to demonstrate a "factual nexus" between a violation of his own Fourth Amendment rights in a search of his truck, and the discovery of the challenged drugs found in his house. His sentence is vacated and remanded where his right to allocution was violated. Wichita police stopped Defendant's vehicle for a valid reason. After defendant denied consent to search, officers brought in a dog, search ed the vehicle and found 56 grams of meth. Police also found allegedly prescribed pills in the passenger's purse and arrested her for not having a prescription with her, although the Court knows of no such law. After her arrest, she told police Jarvis had meth in his house. Police obtained a warrant based on her statements and found 23 more grams of meth mixture. Jarvi alleged that since his passenger was illegally detained at the time she decided to rat him out, all evidence should be suppressed. The Circuit declined, holding that an alleged violation of her constitutional rights did not have a sufficient factual nexus to any violation of his rights to result in suppression. In other words, the defendant cannot exclude evidence that has been come at by exploitation of a violation of someone else's rights.

http://ca10.washburnlaw.edu/cases/2008/08/07-3200.pdf

State v. Mollett, ___ Kan.App.2d ___, ___ P.3d ____ (Unpublished, No. 97,999, filed 08/15/08, petition for review denied 01/22/09). 1) 1:22 AM; 2) "very high crime area" in Wichita behind Harry and Ollies club; 3) lone car parked in alleyway with no lights, single occupant; 4) all businesses in area closed; 5) near jewelry store that had been burglarized within previous 9 months. Officer driving by observes car, pulls up behind it, and turns on red lights. (yes, it did turn out to be a burglar). A split panel of the Kansas Court of Appeals held that the red lights (and the failure of the parked car to leave) was a 4th Amendment seizure, requiring the officer to have had reasonable suspicion of a crime having been, being, or about to be committed. The panel's majority further held that the above facts did not amount to reasonable suspicion. Judge Marquardt dissented.

United States v. Chavez, 534 F.3d 1338 (10th Cir. 2008). The DEA had been investigating Servando Moreno for cocaine distribution. They had a CI arrange a buy to occur in Santa Rosa. DEA sureveilled Moreno and determined he was traveling to Santa Rosa in a white truck driven by Chavez. They had a New Mexico Trooper stop and search the truck and make "his own PC." The trooper treated it like a normal traffic stop and stopped the vehicle for no head lights in a safety zone (although he was mistaken about what the law required). After turning the encounter back into a voluntary stop, he asked for consent. Chavez asked what would happen if he refused. The trooper replied that he would run his drug dog around the truck. The driver consented, and the trooper found the cocaine. The government never argued the legality of the traffic stop, instead relying on the probable cause possessed by the DEA and the automobile exception. The Circuit determined the collective knowledge doctrine applied, and the trooper was entitled to act on the probable cause possessed by the DEA, even though the facts establishing probable cause were never shared with the Trooper. Calling it an example of "vertical collective knowledge" the Court held that where one officer has probable cause, and tells another to act on that probable cause but does not share the details, the second officer can still rely on the first officer's probable cause because they are on the same "team."

http://ca10.washburnlaw.edu/cases/2008/07/07-2008.pdf

United States v. Smith, ___ F.3d ___ (10th Cir. No. 07-6206, filed 7/11/08). Although search warrant may have been facially overbroad (describing a premises known as 311 SE 41st, including "a detached garage with a room built above it located at the North end of the driveway), a reasonable officer would not have known of its overbreadth, and the warrant was served in a reasonable manner. The warrant contained the description of property to be searched, was based on the case agent's personal observation of the premises, was all contained in a fence surrounding the residence and detached garage, the occupant of 311 SE 41st appeared to be in control of all the property, and she told officers no one lived in the garage apartment. Therefore, evidence was admissible. The garage apartment actually had a different address (311 ½ SE 41st).

http://ca10.washburnlaw.edu/cases/2008/07/07-6206.pdf

United States v. Garcia-Zambrano, ___ F.3d ___ (10th Cir. No. 07-1261, filed 7/3/08). Two officers collaborated on obtaining a search warrant for defendant's apartment, but did not communicate very well. One officer, Fitzgibbons, was an off-duty courtesy officer at the apartment complex and had verified the smell of burning marijuana coming from defendant's apartment four different times. Detective Saunders prepared a search warrant affidavit based on his interpretation of what Fitzgibbons told him, most of which he got wrong. The search yielded metamphetamine, ecstacy and marijuana. After a Franks hearing, the district court suppressed all the evidence finding the affidavit was false. The Circuit reversed. It agreed the affidavit contained several false statements, but viewing the remaining statements, the affidavit established probable cause. Reading the affidavit de novo, it concluded the following assertions supported probable cause: (1) management frequently smelled burning marijuana coming from the apartment; (2) several tenants had complained about the apartment; (3) potential tenants have noticed the odor; (4) Office Fitzgibbons corroborated the odor on four occasions; (5) Officer Fitzgibbons has experience in the odor of marijuana; (6) Officer Fitzgibbons had recently smelled the odor and attempted contact, but got no answer at the door; (7) Defendant had at least 5 prior arrest for marijuana possession and (8) a drug dog alerted, but did not indicate on the apartment the day the affidavit was prepared.

http://ca10.washburnlaw.edu/cases/2008/07/07-1261.pdf

United States v. Forbes, ___ F.3d ___ (10th Cir. No. 07-2191, filed 6/17/2008). CBP agents stopped a truck at the New Mexico border. After exchanging basic information with the driver, the CBP agent asked if he could look in the sleeper. The driver became nervous and denied consent. The CBP agent then asked the driver if he would consent to a canine sniff. The driver agreed and was directed to a secondary inspection area. Although the parties disputed what happened next, the Court assumed that agents searched the trailer without consent, but found nothing incriminating. Officers then ran the dog around the exterior of the cab, and the dog alerted on both the passenger side and indicated on the driver's side of the tractor. The parties disputed whether the driver consented to a search of the cab at that point, but the court found it was a search based on probable cause and refused to suppress the four bundles (91.6 kilograms) of marijuana found behind the driver's seat. The Court held the canine sniff provided an independent source of probable cause for the search.

http://ca10.washburnlaw.edu/cases/2008/06/07-2191.pdf

State v. Sleppy, ___ Kan.App.2d ___, 2008 WL 2425275 (No. 98,034, unpublished, filed 06/13/08). OPPD Officer Lopez and his partner stopped a car after an improper turn and swerve. Both driver and passenger were under the influence of alcohol. The passenger, Sleppy, was 18 years old. After arresting Sleppy, Lopez searched the car incident to arrest and found drugs. Denying a motion to suppress, the district court held the search was a valid incident to arrest and/or was justified as an inventory search prior to towing. The Court of Appeals affirmed, finding Belton allows such a search.

State v. Smith, 286 Kan. 402, 184 P.3d 890, cert. denied 129 S.Ct. 628, 172 L.Ed.2d 6349 (2008). An officer stopped a car for a broken taillight, then noticed the tag was expired. The passenger, who was known to the officer and was not the owner of the car or the tag, sat on the curb. The backup officer also knew the passenger and suspected she might have drugs in her possession. He received consent to search her purse and found methamphetamine. The passenger claimed the evidence should have been suppressed because she was detained and asked questions (how you doing? and "can I search your purse?") unrelated to the purposes of the stop. The Kansas Supreme Court agreed, finding the passenger was necessarily detained while the officer dealt with the driver, and the questions put to the passenger exceeded the normal scope and duration of the traffic stop. In doing so, they reversed the Court of Appeals on its holding that Muehler v. Mena allows officers to expand the scope of a traffic stop to include a search not related to the purposes of the stop, even if a detainee has given permission for the search. It also held that since there was no causal break between the violation of the scope's restrictions and the search, the consent did not purge any taint. http://www.kscourts.org/Cases-and-Opinions/opinions/supct/2008/20080530/96189.htm

United States v. Pikyavit, ___ F.3d ___ (10th Cir. No. 07-4113, filed 6/4/2008). A conviction and sentence for possession of ammunition after police, at defendant's invitation while he was in jail, visited his home and entered the premises even though the door was locked is affirmed over claims that defendant's consent to the search of his home did not extend to a situation in which his home's doors were locked or to any other rooms in his house besides the kitchen and the living room. Defendant wanted police to go look for evidence of a fight. Instead they found ammunition, and defendant was a convicted felon.

http://ca10.washburnlaw.edu/cases/2008/06/07-4113.pdf

United States v. Thompson, ___ F.3d ___ (10th Cir. No. 07-5103, filed 5/5/2008). Tulsa police received a tip that a black man known as "Grasshopper" had robbed a bank and was at a certain address. Police went there, knocked on the door, and obtained the consent of the owner to enter and search. Given consent by the owner to enter the NorthWest bedroom, officers found Grasshopper hiding in the closet. Unknown to the officers at the time, Grasshopper rented a room from the owner. Grashopper claimed the entry and search violated his rights. The Circuit rejected the contention finding that the owner had actual authority to consent, and all residents had access to Grasshopper's room. While a landlord does not have authority to consent to search an area leased exclusively to a tenant, Chapman v. United States, 365 U.S. 61, 616-17 (1961); a third-party with actual or apparent authority over commonly-held property can give valid consent to enter and search. Georgia v. Randolph, 547 U.S. 103, 106 (2006). Also, requiring the defendant to don the dark sunglasses found in his room was not unnecessarily suggestive in view of the robbery video tapes showing the suspect wearing similar dark glasses.

http://ca10.washburnlaw.edu/cases/2008/05/07-5103.pdf

United States v. Valadez-Valadez, ___ F.3d ___ (No. 06-2341, filed 5/12/2008). Officer did not have reasonable suspicion of impeding traffic when he stopped a vehicle for driving 10 miles per hour under the speed limit. There was no minimum speed posted. The officer followed the vehicle for several miles, and when he stopped it, found 21 passengers, including some who were illegal aliens being transported in violation of 8 U.S.C. § 1234(a)(1)(A)(ii).

http://ca10.washburnlaw.edu/cases/2008/05/06-2341.pdf

United States v. v. Reeves, ___ F.3d ___ (No. 07-8028, filed 5/72008). In a prosecution for being a felon in possession of a firearm and ammunition, denial of a motion to suppress evidence is reversed where: (1) defendant was seized inside his motel room without a warrant in violation of Payton v. New York, 445 U.S. 573 (1980); and (2) the government did not demonstrate that defendant's subsequent consents to search were not tainted by the unlawful seizure. Several officers showed up at Reeves' motel room at about 0245 hours to investigate him for an aggravated assault. After knocking loudly for about 20 minutes, Reeves finally opened his door and complied with their commands to step out of the room. He was wearing an empty holster, and a revolver was in plain view from outside the room. He was taken into custody at taser-point. Reeves initially consented to a search of the room, but quickly rescinded his consent. He later consented again at about 0820 hours. Pursuant to that consent, officers seized two long-barreled rifles and a .22 handgun. "Opening the door to one's home is not voluntary if ordered to do under color of authority." Reeves, ___ F.3d at ___. The Court concluded that "a reasonable person faced with several police officers consistently knocking and yelling at their door for twenty minutes in the early morning hours would not feel free to ignore the officers' implicit command to open the door."

http://ca10.washburnlaw.edu/cases/2008/05/07-8028.pdf

United States v. Gonzalo Muñoz-Nava, ___ F.2d ___ (No. 06-2247 & 06-2254, filed 5/6/08). A DEA officer stopped defendant in a bus station. Defendant said he lived in El Paso and was in Albuquerque to visit his parents. His only luggage was a shopping bag containing a pair of cowboy boots, house slippers, a sweatshirt and a U.S. Naturalization certificate. The agent testified that the boots Defendant was wearing appeared "ballooned up" as if they had false bottoms, like he had seen on previous seizures. Defendant consented to a dog sniff. The dog indicated, but could not pinpoint the source of the odor (due to windy conditions). Defendant was handcuffed and taken to the DEA office. The dog indicated and found the source. The agent obtained a warrant and located 770.8 grams of heroin in the soles of the boots. Defendant alleged he was arrested without probable cause and the evidence should be suppressed. The Court rejected his argument, finding all the evidence, under the totality of the circumstances, established probable cause.

http://ca10.washburnlaw.edu/cases/2008/05/06-2247.pdf

State v. Moore, ___ Kan.App.2d ___, ___ P.3d ___ (No. 96597, filed 4/28/2008). A Reno County sheriff’s deputy was working part-time as a Cheney Reservoir Park Ranger. He saw a green pickup swerving all over the road and driving 20 mph in a 30 mph zone, and stopped it, suspecting the driver might be driving under the influence. While approaching the vehicle, he noted the odor of anhydrous ammonia and ether, both of which he knew were associated with the manufacture of methamphetamine. The driver produced an expired license and had trouble locating his insurance documents. While the driver was searching for them, the officer noted a can of Coleman fuel and two cans of starter fluid in the bed of the truck. The driver asked to get out of the truck to continue searching for his insurance card, and the officer allowed it after a pat-down. When the driver was getting out, the officer noticed a roll of paper towels and a open container of lithium batteries on the seat of the truck. The officer told the driver (Moore) that he was going to search his truck. Moore protested, saying the officer could not search without a warrant. The officer searched anyway, and found various drug paraphernalia and meth-making ingredients and equipment. The backup officer went to the campsite that Moore said he was headed to, and detected a strong chemical smell. Officers obtained a warrant, and found more meth-making equipment and ingredients. Moore argued the items should be suppressed, alleging the initial stop was unlawful and the items discovered were fruit of the unlawful stop. The Court of Appeals disagreed, holding the stop was based on reasonable suspicion of driving under the influence and the scope of the vehicle search was validly expanded based on items in plain view and plain smell.

http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2008/20080425/96597.htm

Virginia v. Moore, 553 U.S. 164, 128 S.Ct. 1598, ___ L.Ed.3d ___ (No. 06-1082, filed 4/23/2008). Portsmouth Virginia police stopped Moore for suspicion of driving while suspended. They arrested him, and found crack cocaine and $516 in cash in a search incident to arrest that occurred somewhat after the arrest. Virginia state law required issuance of a summons rather than an arrest for driving while suspended. Moore argued the evidence should have been suppressed because his arrest violated state law. The Virginia Supreme Court agreed. The United States Supreme Court reversed, holding that the Fourth Amendment was never meant to incorporate any restrictions that state legislatures may choose to enact restricting the ability of law enforcement officers to make a custodial arrest. See also Atwater v. Lago Vista, 532 U.S. 318, 345 (2001); United States v. Sawyer, 441 F.3d 890, 899 (10th Cir. 2006)(touchstone is whether conduct violates the Fourth Amendment, not state law); United States v. Green, 178 F.3d 1099, 1104 (10th Cir. 1999)(Fourth Amendment reasonableness turns on federal law, even though actors were state police officers).

http://www.law.cornell.edu/supct/html/06-1082.ZO.html

State v. Martin, 285 Kan. 994, 179 P.3d 457, cert. denied ___ U.S. ___, 129 S. Ct. 192 (2008). Discovery of an arrest warrant attenuates the taint of an illegal detention not based on reasonable suspicion. Lawrence police saw a man in public exhibiting physical activity similar to that of someone attempting to urinate. They confronted the man and asked if that was his intent. He admitted it was, and one of the officers told him, 'You were honest, why don't you just get out of here.' The man mounted his bicycle and rode away. The officers then noticed a second bicycle and saw Martin standing about 20 feet away. Although the arresting officer would later admit that he 'didn't see [Martin's] motion' and '[didn't] know what he intended to do,' the officers 'stopped' Martin and asked for his identification. Martin was cooperative, identified himself, and provided his date of birth. When the officers ran his name and birthdate through dispatch, they discovered an outstanding warrant for his arrest. Upon Martin's arrest the officers searched his person and found an Altoids tin containing a substance confirmed as marijuana."

http://www.kscourts.org/Cases-and-Opinions/Opinions/supct/2008/20080328/96126.htm

United States v. Verdin-Garcia, ___ F.3d ___ (10th Cir. No. 06-3354, filed 2/19/2008). Where the warnings given and other circumstances establish a prisoner's awareness of the possibility of monitoring or recording, his decision to take advantage of the privilege of using a prison telephone implies consent to the conditions placed upon it. Defendants' convictions and sentences for crimes relating to their leadership of a large marijuana and methamphetamine trafficking conspiracy are affirmed over claims that: 1) wiretaps carried out during the investigation were invalid and wiretap-recorded evidence should have been excluded from their trial; 2) translations of wiretapped conversations were improper and should have been excluded; 3) one defendant's telephone calls made from prison after his arrest were improperly recorded for use as voice exemplars and that derivative evidence should have been excluded; and 4) the sentences were incorrectly calculated and the life terms imposed were unreasonably long.

http://ca10.washburnlaw.edu/cases/2008/02/06-3354.pdf

State v. Andrews, ___ Kan.App.2d ___, ___ P.3d ___ (No. 96,627, filed 2/15/2008). Andrews was arrested on a warrant and confined in jail. He called his girlfriend and said that the trailer he was pulling at the time of his arrest had "dope and guns" in it. Based on his recorded jail conversations, Johnson County Sheriff's deputies obtained a warrant, seized the dope and guns, and used them against Andrews at trial. He claimed they should be suppressed because intercepting his jail phone calls required a warrant. The Court of Appeals held that no warrant was necessary because, by using the phone, Andrews consented. Monitoring and recording was clearly spelled out in the inmate manual, on signs near the phones, and on the phones themselves.

http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2008/20080215/96627.htm

Jenkins v. Currier, ___ F.3d ___ (10th Cir. No. 07-6113, filed 1/23/2008). Warrantless arrest of prisoner who was mistakenly released from federal custody did not violate the Fourth Amendment. Jenkins was serving a federal sentence and was sentenced in December 2003 to concurrent 12-year sentences in Oklahoma state court. Those sentences were to run concurrently with Jenkins' federal sentence. He was released from federal custody when his sentence expired in May 2004, rather than being returned to the Oklahoma state prison system. Oklahoma officials arrested him in February 2005. The Circuit held that no warrant or detention hearing was required. Jenkins' status was akin to an escapee.

http://ca10.washburnlaw.edu/cases/2008/01/07-6113.pdf

State v. Jeffery, ___ Kan.App.2d ___, ___ P.3d ___ (No. 97,251, filed 01/11/2008). Officers responded to Jeffery's apartment on New Years eve after neighbors reported that Jeffery had cut his wrists and attempted to hang himself in a tree. At first, Jeffery would not open the door, but when he finally opened the door without the security chain attached, officers rushed him, ordered him to lie on the floor, and handcuffed him. Their intent was not to arrest him, but to take him for a mental health evaluation. Officers then searched the full apartment in walk-through fashion looking either for any person who might be injured or any weapons that Jeffery might use to hurt himself or others. They found drugs and paraphernalia. Jeffery was prosecuted and argued the evidence should have been suppressed. The Court of Appeals agreed it should have been suppressed, holding that the protective sweep exception does not apply outside an arrest context, and any emergency was over because Jeffery was in cuffs and did not have access to other items in the residence.

http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2008/20080111/97251.htm

Sentencing

State v. Ruiz-Reyes, ___ Kan. ___, ___ P.3d ___ (No. 95,056, filed 2/1/2008) and State v. Paul, ___ Kan. ___, ___ P.3d ___ (No. 95,105, filed 2/1//2008). Although the sequential relationship requirement from the old habitual criminal act does not apply under the Kansas Sentencing Guidelines, a court still has to determine whether the defendant had a prior conviction at the time of commission of the present offense. Although Ruiz-Reyes had a pending prosecution at the time of commission of his offense, he was not convicted of it until later, so he could not be sentenced as a second offender. Paul had two prior convictions, with different offense dates but both being sentenced on the same day. The district court improperly enhanced Ruiz-Reyes's sentence, but properly enhanced Paul's sentence.

http://www.kscourts.org/Cases-and-Opinions/opinions/supct/2008/20080201/95056.htm

http://www.kscourts.org/Cases-and-Opinions/opinions/supct/2008/20080201/95105.htm

Weapons

State v. Moore, ___ Kan.App.2d ___, ___ P.3d ___ (No. 97,003, filed 1/18/2008). A 7-inch comb that sheaths and contains a 3.5 inch serrated blade knife is not an "ordinary pocketknife" and will support a conviction for criminal use of weapons in violation of K.S.A. 21-4201(a)(2). Where the comb operates as the handle for the knife and the blade does not fold into the handle, the knife is not an "ordinary pocket knife." Also, the term "dangerous knife" used in the statute does not make the statute unconstitutionally vague.

http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2008/20080118/97003.htm






2007 Case Update List

January 1, 2007 to December 31, 2007 (or thereabouts)

Bankruptcy

Troff v. Utah, ___ F.3d ___ (10th Cir. No. 05-4244, filed 3/15/2007). 11 U.S.C. section 523(a)(7) does not permit a debtor in a Chapter 7 bankruptcy proceeding to discharge a restitution obligation imposed as part of a state criminal sentence and payable to a private individual.

http://www.kscourts.org/ca10/cases/2007/05/05-4244.htm

Civil & Criminal Liability

Morales v. City of Milwaukee, 494 F.3d 590 (7th Cir. 2007). Former police officer's internal report of corruption against their superiors were made pursuant to their official duties and thus were not protected activity pursuant to Garcetti v. Ceballos, 547 U.S. 410 (2006). The two officers were demoted after informing an assistant district attorney about allegations that the deputy chief harbored her brother who was wanted on felony drug charges.

Robbins v. City of Wichita, 285 Kan. 455, 172 P.3d 1187 (2007). Wichita police responded to a 911 call about a domestic disturbance. The caller locked the suspect in the garage and, while still on the phone with 911, the suspect began breaking in the door from the garage to the house with an axe. He eventually assaulted persons inside with the axe, then left in a truck. Officers pursued him for about 2 minutes with their lights and siren operating at speeds of about 70 miles per hour. The suspect ran a red light, and t-boned another car, killing both that driver and the suspect. The innocent victim's husband, who witnessed the accident, sued the city of Wichita, the chief of police, and the police officers involved in the pursuit. The district court granted the defendants' motion for summary judgment, concluding that the defendants did not owe a duty of care to the innocent victim. The Kansas Supreme Court affirmed, but in doing so changed the law on pursuits. The Court held that K.S.A. 8-1506 imposes a duty on the operators of emergency vehicles to drive with "due regard for the safety of all persons," and this duty applies not only to actual physical operation of the vehicle, but also to the decision to pursue or to continue pursuit, overruling any contrary statement in Thorton v. Shore, 233 Kan. 737 (1983). Finding that the pursuing officers did not recklessly disregard the rights of the innocent victim, it found no breach of duty and affirmed summary judgment for the officers.

http://www.kscourts.org/Cases-and-Opinions/opinions/supct/2007/20071214/96970.htm

Casey v. City of Fed. Heights, ___ F.3d ___ (10th Cir. No. 06-1426, filed 12/10/2007). In an action claiming excessive force under the Fourth Amendment and 42 U.S.C. § 1983, summary judgment dismissal of the claims is reversed where defendants were not entitled to summary judgment under circumstances in which plaintiff went to a municipal courthouse to contest a traffic ticket, lost his case, walked to the parking lot to retrieve money from his truck to pay the fine, and on his way back was grabbed, tackled, Tasered, and beaten by city police officers.

http://ca10.washburnlaw.edu/cases/2007/12/06-1426.pdf

Case name unknown. Thu Oct 25, 2007 1:20 pm (PST) Courtesy of the Newspaper.com

http://www.thenewspaper.com/news/20/2035.asp New Jersey appellate court upholds the use of extreme force in taking blood samples from motorists accused of DUI. The court ruled that police may inflict permanent physical damage while forcibly taking blood from a motorist accused of driving under the influence of alcohol (DUI). The court found that police officers did nothing wrong when they held down Russell Johnston in such a way that his wrist suffered permanent nerve damage as a nurse took his blood. During the incident, a police officer put his entire weight on one of Johnston's wrists to hold it down and used a handcuff to secure the other. Johnston sought to bring the excessive force question to a jury, but a Mercer County Court judge and the two judge appellate panel disagreed, ruling that no suit could be brought against the officers for the injury inflicted. "We are satisfied that the actions taken by the police officers to restrain plaintiff were objectively reasonable," the appellate panel ruled. "Defendants are thus entitled to the protections afforded by the qualified immunity doctrine."

Mecham v. Frazier, 500 F.3d 1200 (10th Cir. 2007). In civil rights suit alleging excessive force in using pepper spray, denial of summary judgment on qualified immunity is reversed where the officers' use of force was objectively reasonable in this case. Utah officers stopped defendant for speeding and no seat belt. Her Arizona license was reported as suspended, although she also had a valid license from Utah (which she denied). The officer told her that he would not let her drive while suspended. Defendant took a call from her mother on her cell phone, and refused the officer's order to end the call. The officers called for a wrecker, which arrived 15 minutes later. Defendant refused orders to get out of the car, so officers sprayed her and removed her. She alleged they used excessive force. The officers moved for summary judgment based on qualified immunity. The district court denied the motion, holding that objective reasonableness should be decided by a jury. The circuit disagreed, stating it is not for the jury to decide where the facts are uncontroverted, and on those uncontroverted facts, the officers actions were reasonable.

http://www.kscourts.org/ca10/cases/2007/09/05-4297.pdf

Anderson v. Suiters, ___ F.3d ___ (10th Cir. No. 06-6134, filed 8/29/2007). In an action brought against a police officer, a local television reporter and the TV station's owner pursuant to 42 U.S.C. section 1983 and Oklahoma state tort law arising from the airing of excerpts of a videotape containing the rape of plaintiff, dismissal and summary judgment rulings for media defendants are affirmed over claims that the district court erred in: 1) concluding that the media defendants were not state actors; 2) concluding that her allegations and proffered evidence failed to support her state law tort claims against them; and 3) denying leave to amend her complaint to add certain claims.

http://www.kscourts.org/ca10/cases/2007/08/06-6134.htm

Alvarado v. KOB-TV, L.L.C., ___ F.3d ___ (10th Cir. No. 06-2001, filed 7/16/2007). In a suit brought by two former undercover police officers against a television station for broadcasting their identities and their undercover status in the context of their suspected involvement in an alleged incident of sexual assault, Rule 12(b)(6) dismissal of plaintiffs' claims is affirmed as plaintiffs' allegations did not support a tort claim for either invasion of privacy or intentional infliction of emotional distress.

http://www.kscourts.org/ca10/cases/2007/07/06-2001.htm

Wilder v. Turner, 490 F.3d 810 (10th Cir. 2007). In a 42 U.S.C. § 1983 action against a Colorado Trooper for false arrest, the trooper was entitled to qualified immunity because there was probable cause to arrest the plaintiff for DUI. The trooper stopped Plaintiff for speeding, smelled an odor of alcohol on his breath, and observed pinkish and watery eyes, a flushed face, and the driver speaking unusually slow and deliberately. The driver admitted to having a glass of wine ten to fifteen minutes earlier. The driver's demeanor was argumentative, but he eventually became cooperative. The driver's clothes were orderly, he did not appear to have balance problems and he normally exited the vehicle. The driver refused any field sobriety tests, and was arrested. A later blood test showed an blood alcohol content of .014. The district court denied immunity and the case went to trial. A first jury found in favor of the trooper. The district court set it aside and a second jury found no probable cause and awarded the driver $1 million in damages. The Circuit reversed, holding that the factors above, combined with a refusal to perform field sobriety tests, was probable cause to arrest. See Summers v. Utah, 927 F.2d 1165 (10th Cir. 1991).

http://www.kscourts.org/ca10/cases/2007/06/06-1092.htm

Scott v. Harris, 550 U.S. 372, 127 S.Ct. 1769, ___ L.Ed.3d ___ (No. 05-1631, filed 4/30/07).             In this case, a Coweta County, Georgia, deputy clocked the suspect’s vehicle driving at 73 miles per hour in a 55-mile-per-hour zone. The deputy pursued, and in attempting the flee, the suspect drove between 70 and 90 miles per hour, passed other vehicles by crossing to the wrong side of the road, and ran through two red lights. The deputy signaled for the suspect to stop, but the suspect refused. The deputy radioed a supervisor asking for permission to perform a "PIT" (Precision Intervention Technique) maneuver, which is designed to stop a fleeing motorist safely and quickly by hitting their car at a specific point and throwing it into a spin. The supervisor gave the deputy permission to perform the maneuver, but the deputy determined that he could not do it because he was going too fast. Instead, he rammed his cruiser directly into the suspect’s vehicle, causing the suspect to lose control, leave the road, run down an embankment, and crash. As a result of the crash, the suspect was rendered a quadriplegic.

            The United States Supreme Court reversed a judgment holding the officer was not entitled to qualified immunity. It held the officer's action of ramming the vehicle was objectively reasonable because the chase initiated by the suspect posed a substantial and immediate risk of serious physical injury to others. Accordingly, it held the officer was entitled to summary judgment. The court took the unusual step of posting the chase video on the court's website.

http://www.supremecourtus.gov/opinions/06slipopinion.html

Piercy v. Maketa, No. 05-1192 (10th Cir. March 27, 2007). In a suit against a county sheriff's office and several of its employees alleging sex discrimination and retaliation, summary judgment for defendants is affirmed in part as to the retaliation claim as plaintiff failed to bring forward evidence to show that retaliatory motive was a determinative factor in her dismissal. However, the judgment is reversed in part as to the discrimination claim where summary judgment was improperly granted on whether plaintiff's inability to transfer to a particular jail was an adverse employment action.

West v. Keef, ___ F.3d ___ (10th Cir. No. 05-6353, filed 3/14/2007). A child called 911 and stated that his mother was "going crazy," that she was "[t]rying to kill herself," that she was "trying to cut her[self] with a knife" and other statements to the same effect. Those statements, standing alone and in context, are sufficient to justify warrantless entry. Once inside, the officers' own observations confirmed the son's fears and fully justified a warrantless seizure. The fact that officers failed to comply with Oklahoma state law on emergency detentions was irrelevant.

http://www.kscourts.org/ca10/cases/2007/03/05-6353.htm

Wallace v. Kato, ___ U.S. ___, 127 S.Ct. 1091, ___ L.Ed.3d ___ (No. 05-1240, filed 2/21/2007). The statute of limitations for a 42 U.S.C. section 1983 claim seeking damages for a false arrest in violation of the Fourth Amendment, where the arrest is followed by criminal proceedings, begins to run at the time the claimant becomes detained pursuant to legal process, e.g., when he appeared before the examining magistrate and was bound over for trial.

Marshall v. Columbia Lea Reg'l Hosp., 474 F.3d 733 (10th Cir. 2007). A judgment for plaintiff on a civil rights claim brought against a city and police for violation of his Fourth Amendment right to be free of unreasonable search and seizure is affirmed where the officers conceded that they violated his Fourth Amendment rights when they ordered a warrantless, nonconsensual blood test for an alleged misdemeanor, and, contrary to their argument, the constitutional right was clearly established. The prior case law need not address a situation factually identical to that of a defendant officer, but must provide "fair warning that [the] officer's conduct would violate constitutional rights."

DL Suspension

Robinson v. Kansas Department of Revenue, ___ Kan.App.2d ___, ___ P.3d ___ (No. 95931, 3/16/2007). A trooper stopped a noncommercial motor vehicle and found the driver was intoxicated. He arrested the driver and read him the DC-70 form, which said nothing about how a failure or refusal would affect the driver's commercial driver's license. The driver argued that failure to do so was a due process violation. The Court of Appeals disagreed, noting that K.S.A. 2006 Supp. 8-1001(g) states that failure to give the noticed required by K.S.A. 8-2,145 "shall not invalidate any action taken as a result of the requirements of this section."

http://www.kscourts.org/kscases/ctapp/2007/20070316/95931.htm

DUI

City of Norton v. Wonderly, 38 Kan.App.2d 797, 172 P.3d 1205 (2007). A specific tip by an identified caller following a drunk is sufficient reasonable suspicion to stop a vehicle, but the officer arrested Wonderly without probable cause to believe he was DUI, so the conviction is reversed. The tipster reported a Northbound white pickup truck driving erratically. The officer followed for about three minutes, but did not observe any traffic violations. The officer detected the odor of an alcoholic beverage and Wonderly admitted drinking at a bar earlier. Wonderly did not have slurred speech or balance problems. No field sobriety tests were done due to rain. The PBT showed higher than 0.08. Wonderly blew a 0.174.

State v. Stevens, 285 Kan. 307, 172 P.3d 570 (2007), affirming 36 Kan. App. 2d 323, 138 P.3d 1262 (2006). Deficient sample breath tests are admissible under K.S.A.8-1567(a)(3) as "other competent evidence." Cf. State v. Hermann, 33 Kan.App.2d 46, 99 P.3d 632 (2004)(deficient samples are not admissible as other competent evidence under K.S.A. 8-1567(a)(1)).

http://www.kscourts.org/Cases-and-Opinions/opinions/supct/2007/20071207/94187.htm

Ashley v. Kansas Department of Revenue, ___ Kan.App.2d ___, ___ P.3d ___ (No. 96,707, filed 9/7/2007). Officer Glaser arrested Ashley for DUI. Officer Doherty performed the breath test, which Ashley failed. Officer Glaser served the DC-27 form on Ashley. Ashley claimed that only Doherty could serve the DC-27 form as the "officer directing administration of the testing," as that term is used in K.S.A. 8-1002(c). The Court of Appeals disagreed, stating Ashely's argument "would require a highly technical interpretation of the statute which is inconsistent with the remedial nature of the legislation."

http://www.kscourts.org/kscases/ctapp/2007/20070907/96707.htm

State v. Whillock, ___ Kan.App.2d ___, ___ P.3d ___ (No. 97,244, filed 9/7/2007). Defendant pled no contest to one count of felony DUI and was sentenced to 13 months in jail. He appealed, claiming that imposition of the 30-day penalty in K.S.A. 8-1567(h) for having a child under 14 in the car was not proved to a jury and violates Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.3d 2d 435 (2000) and State v. Gould, 271 Kan. 394, 23 P.3d 801 (2001). The Court of Appeals agreed.

http://www.kscourts.org/kscases/ctapp/2007/20070907/97244.htm

State v. Tedder, ___ Kan.App.2d ___, ___ P.3d ___ (No. 97,134, filed 7/20/07). There is no constitutional right to consult with an attorney prior to submitting to or refusing a breath test. In addition, asking a defendant whether he or she will submit to a test does not constitute custodial interrogation. Under K.S.A. 8-1001(f)(I), an arrestee has the right to consult with an attorney after completion of the testing. Pursuant to K.S.A. 8-1001(f) (I), request for counsel must be made after completion of the breath test before there can be a violation of a defendant's statutory right to confer with an attorney.

http://www.kscourts.org/kscases/ctapp/2007/20070720/97134.htm

State v. Kogler, ___ Kan.App.2d ___, ___ P.3d ___ (No. 97,586, filed 7/20/07). The notice provisions of K.S.A. 2005 Supp. 8-1001(f) are mandatory and not merely directory. The trooper read the suspect an ICA from an outdated DC-70 form that contained a five-year look back provision. A change in the law sixteen days prior did away with the five–year look back provision. The Court of Appeals held the ICA given did not substantially comply with the statute and suppressed the breath test. It distinguished Barnhart v. Kansas Dept. of Revenue, 243 Kan. 209, 755 P.3d 1337 (1988)(DC-70 paraphrased statutory language, but substantially complied) and State v. Branscum, 19 Kan. App. 2d 836, 877 P.2d 458, rev. denied 255 Kan. 1004 (1994)(officer read outdated DC-70 form, but orally advised defendant of change in the law), and followed Meigs v. Kansas Dept. of Revenue, 251 Kan. 677, 840 P.2d 448 (1992)(Officer used outdated DC-70 form that advised of suspension for 180 days v. one year)..No showing of prejudice is required when the notice given did not substantially comply with the requirements of the statute.

http://www.kscourts.org/kscases/ctapp/2007/20070720/97586.htm

Evidence

State v. Laturner, 38 Kan. App. 2d 193, 197, 163 P.3d 367 (2007). Lab test result showing that a substance is cocaine is testimonial under Crawford.

United States v. Beckstead, 500 F.3d 1154 (10th Cir. 2007). Defendant's convictions and sentence resulting from his involvement with a methamphetamine lab is affirmed over defendant's primary challenge that the Government denied him due process when officers seized and immediately disposed of the methamphetamine lab pursuant to standard police department policy. Defendant failed to show that police officers acted in bad faith when they destroyed potentially exculpatory evidence. Unless a criminal defendant can show bad faith, "failure to preserve potentially useful evidence does not constitute a denial of due process of law." Arizona v. Youngblood, 488 U.S. 51, 58 (1988); see also Snow v. Sirmons, 474 F.3d 693, 716 (10th Cir. 2007). Destroying evidence pursuant to an established procedure "precludes a finding of bad faith absent other compelling evidence." United States v. Gomez, 191 F.3d 1214, 1219 (10th Cir. 1999). "[M]any of the chemicals associated with the production of methamphetamine are combustible, toxic or corrosive, and very dangerous."

http://www.kscourts.org/ca10/cases/2007/09/05-4178.pdf

Expungment

City of Topeka v. Mark E. Kern, Case No. 1998-11783. Although DUI convictions cannot be expunged on an after 7/1/06, it violates the ex post facto clause to apply the statute to convictions occuring prior to the effective date of the statute. See State v. Anderson, 12 Kan.App.2d 342, 744 P.2d 143 (1987).

Firearms

Watson v. United States, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 06–571, filed 12/10/2007). In the context of criminal sentencing, a person who trades his drugs for a gun does not "use" a firearm "during and in relation to . . . [a] drug trafficking crime" within the meaning of 18 U.S.C. section 924(c)(1)(A).

http://supct.law.cornell.edu/supct/html/06-571.ZO.html

Logan v. U.S., ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___, 2007 U.S. LEXIS 12922, December 4, 2007. There is a mandatory 15 year sentence under the Armed Career Criminal Act of 1984 for those with at least three prior convictions for violent felonies. 18 U.S.C. §924(e)(1). A conviction for which a person has had civil rights restored does not count. 18 U.S.C. §921(a)(20). A violent felony conviction that did not result in any loss of civil rights does count. The ordinary meaning of the word "restored"--giving back something that has been taken away--does not include retention of something never lost.

http://www.law.cornell.edu/supct/html/06-6911.ZO.html

First Amendment

Morse v. Frederick, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 06-278, 6/25/07). Student at public high school in Juneau Alaska displayed a large banner stating "Bong Hits 4 Jesus" off-campus at an event which was sponsored by the school. The school principal directed the student to take down the banner. Student sued, claiming violation of free speech. The Ninth Circuit held that the student had a free speech right to display the banner, and that the school had not demonstrated a risk of "substantial disruption" of school activities. (Frederick v. Morse, 439 F.3d 1114, 2006). The Supreme Court reversed, holding the message could reasonably be interpreted as promoting illegal drug use. The free speech rights of students in public school are not as great as adults in other settings. Deterring student drug use is an important, perhaps compelling, interest. Schools can prohibit student expression which promotes illegal drug use. Three Justices (Stevens, Souter, Ginsberg) dissented.

Citizens for Peace in Space v. City of Colorado Springs, 477 F.3d 1212 (10th Cir. 2007). The City did not violate protestor's First Amendment rights by restricting all demonstrations from a several block security zone surrounding the Broadmoor Hotel, where the Defense Secretary was hosting a conference of NATO defense ministers. The only persons allowed into the security zone were conference attendees, accredited media, Broadmoor employees, individuals residing in the zone and their guests and service personnel servicing residences in the zone and the Broadmoor. The court held that allowing protest groups to present their views on the periphery of the security zone was constitutionally adequate.

http://www.kscourts.org/ca10/cases/2007/02/05-1391.htm

Interrogation

State v. Bordeaux, ___Kan.App.2d ___(12/7/07). Officers were dispatched to a suspicious person call. The description was of a man wearing blue jeans, a black coat, and a black stocking cap "lurking along the fence at the edge of the caller’s property" near a storage shed which contained personal property. When police arrived they found the defendant, Anthony Bordeaux, hiding in the open garden shed. They ordered him out at gunpoint and he refused several times before complying. Officers patted him down for weapons and handcuffed him. One officer grabbed a black coat from inside the shed and asked Bordeaux whether it was his coat. Bordeaux said it was. The coat contained drugs. Defendant argued his answer and the drugs should have been suppressed due to a Miranda violation. The Court agreed, in a 2-1 decision. The Court said that even if Bordeaux hadn’t been handcuffed yet when the question was asked, he was still in custody due to the use of guns to force him to step out of the shed. The dissent argued that the significance of the question asked wasn’t even apparent until drugs were later found in the coat. When the police confronted him they had no probable cause to believe any crime had been committed. The question about the coat, the dissent urges, was simply a general on-the-scene question asked during the fact-finding process and he would have allowed it.

http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2007/20071207/98161.htm

United States v. Revels, ___ F.3d ___ (10th Cir. No. 06-5223, filed 12/20/2007). In a prosecution for drug- and firearm-related offenses, an order suppressing incriminating statements made by defendant is affirmed where a reasonable person in defendant's position would have considered her freedom of movement to be restricted to a degree consistent with formal arrest, and thus she was in custody for Fifth Amendment purposes and should have been advised of her Miranda rights.

http://ca10.washburnlaw.edu/cases/2007/12/06-5223.pdf

State v. Woolverton, 284 Kan. 59, 159 P.3d 985 (2007). Defendant and his baby's mama became involved in a telephone disagreement when defendant was late for visitation. Defendant, who was in Missouri, called the baby's mama in Prairie Village and called her a "fucking whore" and threatened to "fucking kill her." He was convicted of criminal threat and phone harassment. On appeal the Supreme Court held that (1) defendant's prior criminal threat conviction was improperly admitted at trial but the error was harmless; (2) Kansas had jurisdiction to prosecute even though the threats were uttered in Missouri and (3) no Miranda violation occurred because defendant was not in custody when interviewed in the stairwell of his apartment, even though the detectives had stated they would seek a warrant if he did not cooperate. Detectives informed him that he would not be arrested and could return to his apartment after the interview.

http://www.kscourts.org/kscases/supct/2007/20070608/93751.htm

United States v. Lara-Garcia, ___ F.3d ___ (10th Cir. No. 06-4155, filed 3/7/2007). A federal agent's failure to provide a lawfully detained suspect a Miranda warning prior to inquiring about his immigration status does not require suppression of that status where fingerprint evidence subsequently confirms such status.

Medical Expenses

State v. Durham, 38 Kan.App.2d 791, ___ P.3d ___ (No. 97236, filed 12/14/07). K.S.A. §21-4603d(a)(8) allows the district judge to order the defendant, upon conviction, to repay the amount of any medical costs incurred by any law enforcement agency or the county upon conviction. While in custody but before entering his plea, Durham swallowed one or two razor blades and was transported from Lyon County to the Kansas University Medical Center for treatment. Lyon County Sheriff's Department officers accompanied Durham during transport to the Medical Center and guarded him during his treatment, incurring overtime salary and lodging expenses. The district court ordered Durham to pay total restitution of $22,952.43, which included a $20 bank fee to the victim of the forgery, $21,319.69 for medical expenses, $1,336.37 for the officers' overtime expenses, and $296.37 for the officers' lodging expenses. The Court of Appeals held the district court had statutory authority pursuant to K.S.A. 2006 Supp. 21-4603d(a)(8) to order Durham to pay medical expenses in addition to the $20 bank fee, but reversed the order to pay resitituion for overtime and lodging for the officer. It said the terms "costs" and "expenses" as used in K.S.A. 2006 Supp. 21-4603d(a)(8) are redundant, and that overtime and lodging expenses are not "medical costs or expenses."

http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2007/20071214/97236.htm

Miscellaneous

In Re K.M.H., ___ Kan. ___, ___, ___ P.3d ___ (No. 96,102, filed 10/26/2007). "Generally speaking, mere ignorance of the law is no excuse for failing to abide by it. State ex rel. Murray v. Palmgren, 231 Kan. 524, 536, 646 P.2d 1091 (1982)."

http://www.kscourts.org/Cases-and-Opinions/opinions/supct/2007/20071026/96102.htm

Restitution

State v. Vasquez, ___ Kan.App.2d ___, ___ P.3d ____ (No. 96690, filed 11/21/07). Once an individual completes his or her period of incarceration or probation, the trial court no longer has jurisdiction in the criminal case over any unpaid restitution. Collection of unpaid restitution must then be pursued in a civil action. (Dicta - held state's appeal was not an appealable order under 22-3602).

Search and Seizure

State v. Henning, 38 Kan.App.2d 706, 171 P.3d 660 (2007)(No. 98,118, 11/30/07, rev. granted 04/23/08, argued 09/03/08) In 2006 the Kansas legislature amended K.S.A. 22-2501(c) to allow a search incident to arrest for evidence of "a" crime as opposed to evidence of "the" crime. Six days after the statutory amendment, a deputy saw Henning coming out of a convenience store, and seemed to recall he had a warrant. The deputy approached Henning after he was seated in the passenger side of a vehicle, verified the warrant and arrested Henning. The deputy then searched the car incident to arrest and found amphetamine and paraphernalia in the vehicle. Henning argued "a" crime meant only "an identified crime for which the officer has probable cause to believe occurred." The Court held that "a" crime means "any" crime, and upheld the statute as constitutional. A good review of the legislative history of K.S.A. 22-2501(c) and the case law on search incident to arrest.

http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2007/20071130/98118.htm

State v. Fisher, 283 Kan. 272, 305, 154 P.3d 455 (2007). The smell of ether may be considered with other evidence in the totality of the circumstances for determining whether probable cause exists.

State v. Fewell, 37 Kan.App.2d 283, 152 P.3d 1249 (2007), affirmed 286 Kan. 370, 184 P.3d 903 (2008). Trooper Engholm stopped a car for speeding and smelled the odor of burnt marijuna coming from the passenger side of the vehicle. Engholm , an 11-year veteran, had the driver Fewell, step out and meet him at the back of the vehicle. Fewell initially denied any knowledge of the source of the smell, but later admitted the passenger smoked a blunt. The passenger told Engholm that he had smoked all the marijuana. Engholm searched the passenger and discovered three bags of marijuana and $1000 in cash. At some point Fewell requested he be allowed to leave and pick up the passenger's girlfreind. Engholm then searched Fewell and found a switchblade, a bent spoon and a glass pipe. After back up arrived, Enholm found crack in Fewell's right hand. No more drugs were discovered duing a search of the vehicle. Fewell alleges there was no probable cause to search him. The Court of Appeals, Judge Greene dissenting, disagreed, finding the odor of burnt marijuana established probable cause and exigent cirumstances existed for the search because Engholm was alone, the passenger wanted to leave, and evidence may have disappeared if Fewell had been allowed to leave.

http://www.kscourts.org/Cases-and-Opinions/opinions/supct/2008/20080530/95041.htm

State v, Marx, 38 Kan.App.2d 598, 171 P.3d 276 (filed 10/26/2007), rev. granted, ___ Kan. ___, (04/23/08). [NOTE: COURT OF APPEALS DECISION IS NO LONGER GOOD LAW. See State v. Marx, above.] A motor home passed an officer sitting beside the highway. A hubcap came off the motor home. The officer retrieved the hubcap, then caught up with the motor home intending to stop it to return the hubcap. The officer saw the motor home cross the fog line, then overcorrect and cross the centerline. The officer stopped the motor home, and then smelled marijuana. After turning the stop back into a voluntary encounter, the officer asked for and was denied consent. He then stated he was going to run his dog around the outside. The driver got back into the motor home despite instructions to stop. She later exited and was arrested. A search of the motor home's interior and septic tank yielded drugs and paraphernalia. The occupants moved to suppress, arguing there was no reasonable suspicion for a stop. The Court of Appeals disagreed. It held that this was not a valid safety stop, but was a stop based on reasonable suspicion, declining to follow State v. Ross, 37 Kan.App. 2d 126, 149 P.3d 876, rev. denied 284 Kan. ___ (2007), and instead chose to follow 10th Circuit precedent.

http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2007/20071026/98059.htm

State v. Thompson, 284 Kan. 763, 166 P.3d 1015 (2007), reversing State v. Thompson, 36 Kan.App.2d 252, 138 P.3d 398 (2006). In an almost textbook "turn a traffic stop back into a voluntary encounter" case, an officer stopped Thompson for a faulty headlight. The officer called for a back, telling the back officer he intended to seek consent to search the vehicle. Once the back arrived, the contact officer issued Thompson a verbal warning, returned the driver's license and insurance documents and told the driver to "have a good day." Although the officer testified that he then started to walk away but returned within a second or two, the video tape showed that the officer did not leave the vicinity of the defendant after telling him to have a good day, but rather, immediately after the defendant had stated thank you to the officer, the officer asked Thompson if he could ask him some additional questions, which eventually resulted in Thompson giving consent. The officer found drug paraphernalia and finished methamphetamine in powder form. Thompson later gave written consent to search his garage, where a host of additional manufacturing paraphernalia was found. Thompson alleged his consent was coerced. The Court of Appeals agreed, holding that failure to actually disengage at the conclusion of the traffic stop, and failure to turn off emergency lights on the patrol vehicle constituted continued detention exceeding the scope or duration necessary to effectuate the purpose of the traffic stop without reasonable suspicion. The Kansas Supreme Court reversed the Court of Appeals, holding that it had failed to properly apply the totality of the circumstances test.

http://www.kscourts.org/kscases/supct/2007/20070907/94254.htm

State v. Chilson, 38 Kan.App.2d 338, 165 P.3d 304 (2007). The district court erred in suppressing evidence on a consent search. Defendant was 22 years old and lived with his father. Officers were sent to a domestic at the residence, and father told officers to make the son leave. Following their domestic policy which required separation of the subjects, defendant was detained outside. Father gave consent to search the son's bedroom and bathroom, where officers found fragments of marijuana. The Court of Appeals held that in the absence an objection and in the absence of evidence that officers removed a non-consenting co-occupant to avoid possible objection to the search, the father's consent was valid. Cf. Georgia v. Randolph, 547 U.S. 103, 126 S.Ct. 1515, 164 L.Ed. 2d 208 (2006).

http://www.kscourts.org/kscases/ctapp/2007/20070824/96418.htm

United States v. Andrus, 483 F.3d 711 (10th Cir. 2007), cert. denied 128 S.Ct. 1738 (2008), . In an unusual case dealing with third-party consent to search of a personal computer, the majority held that the third-party had apparent authority to consent based on what officers knew at the time. Officers developed 51-year old Ray Andrus as a suspect in a child pornography ring. They did not believe they had enough evidence to obtain a search warrant, but did a knock and talk at his house. His 91-year old father answered the door and gave officers consent to search Ray's bedroom and computer. The father owned the house, paid the cable bill which included internet access, and had an email address used on a child-porn site. Only after mirroring the computer's hard drive with EnCase, did the officers note the computer was password protected, but had found files suggestive of child pornography. They also later discovered that the computer, located in Ray's bedroom, was the only one in the house, the father had never been on the computer and no one else in the house used it. Someone contacted Ray Andrus and he arrived home and subsequently consented. He was later convicted, but challenged the initial search. The Circuit, one judge dissenting, held that based on this unique factual scenario, the father had apparent authority to consent to the search.

http://www.kscourts.org/ca10/cases/2007/08/06-3094.htm

United States v. Cos, 498 F.3d 1115 (10th Cir. 2007). Defendant was convicted of being a felon in possession of a firearm. An ex-girlfriend told police that Cos threatened to kill her. Officers obtained an arrest warrant. Three weeks later, officers went to Cos's apartment in the mid-afternoon to serve the warrant. A 19-year old female friend of Cos answered the door. She had three young children with her at the time and was cooking on the stove. She said Cos had been there earlier, but wasn't there at the time. Officers asked if they could "take a look," and she said "yeah, go for it." One of the children had been in a bedroom, and kept looking towards the bedroom. Believing someone might be present, an officer drew his weapon and looked around the bedroom. He found a gun and holster under the bed. Officers then sought a search warrant. They contacted the apartment manager, who said Cos was the only one on the lease. They later found out the 19-year old female was only visiting to use the pool, and she denied living or staying there. Cos, who arrived later, told a slightly different story, stating he had a live-in girlfriend who had a key to his apartment, but officers never asked her name and couldn't say whether it was the 19-year old. The district court suppressed the evidence, holding that the arrest warrant did not authorize entry because officers had no reasonable belief Cos was there at the time; that the 19-year old had no actual authority to consent to entry; and she had no apparent authority because police did not ask enough questions. The court also held Leon did not excuse a warrantless entry because the officers were mistaken in their belief about apparent authority. The Circuit, one judge dissenting (on procedural grounds), affirmed.

http://www.kscourts.org/ca10/cases/2007/08/06-2187.htm

State v. Kelley, ___ Kan.App.2d ___, ___ P.3d ___ (No. 96,181, filed 7/27/2007). Officers placed signs on the highway stating, "Drug dog working ahead" and "Narcotics officers working ahead." They placed one officer in a lawn chair beside the highway to watch driver's reactions to these signs. Upon seeing the signs, defendant began reaching for the passenger side of the vehicle and while doing so, crossed the center line. The officer in the lawn chair notified other officers down the road who stopped the defendant. While running defendant's license, a drug dog alerted to the passenger door. Officers asked the driver to step out. He stated "no" and drove away. He was later stopped and drugs were found in the car. He appealed, claiming he was improperly convicted of felony obstruction based on the traffic infraction and claimed the evidence should have been suppressed. The Court of Appeals agreed that felony obstruction did not exist for a stop based on a traffic infraction (defendant was also convicted of attempting to elude), but disagreed the evidence should be suppressed. It held the dog sniff did not constitute a search and gave probable cause to search the car.

In Re J.M.E., 38 Kan.App.2d 229, 162 P.3d 835 (2007). The odor of burnt marijuana is reasonable suspicion to detain the occupants of a car and is probable cause to search a car. The car in this case was called in as a suspicious vehicle at the end of a dead-end road. An officer pulled up and saw the back-up lights come on. She then activated her emergency lights to let the driver know she was there. She approached the vehicle, and when the driver rolled down the window, she smelt the odor of burnt marijuana. The district court suppressed the evidence, finding no valid reason for the stop based on State v. McKeown, 240 Kan. 5406, 819 P.2d 644 (1991). The Court of Appeals reversed, finding initially there was no stop and, even if it was, it was a valid community caretaking function, and the odor of burnt marijuana justified detention and search of the car. It distinguished McKeown on the basis that it involved a stop of a moving vehicle that had initially been called in as a parked stationary vehicle.

http://www.kscourts.org/kscases/ctapp/2007/20070727/97780.htm

Callahan v. Millard County, ___ F.3d ___ (10th Cir. No. 06-4135, unpublished opinion filed 7/17/2007). In a civil rights action arising from a police raid of plaintiff's home, summary judgment for defendants is reversed in part and remanded where: 1) officers violated plaintiff's constitutional rights when they entered his home based on the invitation of an informant and without a warrant, direct consent, or other exigent circumstances; 2) the district court incorrectly determined that those rights were not clearly established, as there is no legal support for allowing an informant to summon backup officers to a home after the informant has been invited with consent; and 3) consequently the officers are not protected by qualified immunity.

http://www.kscourts.org/ca10/cases/2007/07/06-4135.htm

Brendlin v. California, 551 U.S. 249, 127 S.Ct. 2400, 168 L.Ed.3d 132 (2007). When police stop a car for a traffic offense, a passenger in the car is "seized" under the Fourth Amendment, and therefore has standing to object to the legality of the stop. Bruce Brendlin was a passenger in a car driven by Karen Simeroth when she was the subject of a traffic stop by a County Deputy Sheriff. The deputy stopped the car to ensure the temorary registration permit matched the vehicle. The deputy recognized Brendlin as a parole violator, and eventually ordered him out of the car at gunpoint. During the stop, the Deputy discovered drugs and drug paraphernalia in the car and on Brendlin. Brendlin was charged with manufacturing methamphetamine and moved to suppress the evidence on the grounds that the original traffic stop was unreasonable, and therefore in violation of his Fourth Amendment rights. The trial court denied his motion, and the California Supreme Court upheld the denial on the basis that Brendlin had not been "seized" under the meaning of the Fourth Amendment, and thus could not challenge the stop. The Supreme Court held that under the circumstances, "any reasonable passenger would have understood the police officers to be exercising control to the point that no one in the car was free to depart without police permission."

http://www.law.cornell.edu/supct/html/06-8120.ZO.html

United States v. Barrows, ___ F.3d ___ (10th Cir. No. 06-6274, filed 4/3/2007). Mr. Barrows shared a workspace with the city clerk in an open area of the city hall. Although a counter cordoned off their common work area from the general public, Mr. Barrows and the city clerk enjoyed little privacy. Other city employees regularly entered their space to use the city's fax machine and photocopier, which were located approximately a foot from Mr. Barrows's and the city clerk's desk. Mr. Barrows and the city clerk shared a computer in addition to desk space, and both used it to access city records and programs. They could not, however, use the computer simultaneously, so Barrows brought his personal computer to work and hooked it up to the city network. He did not password protect the computer or its files. One day a computer-savvy reserve police officer was assisting the city clerk with computer issues and found child pornography on Barrow's computer. He obtained a warrant and searched the hard drive. Barrows contends the evidence should have been suppressed. The Circuit disagreed, holding that Barrows's failure to password protect his computer, turn it off, or take any other steps to prevent third-party use did not exhibit a subjective expectation of privacy, and even if he did, it was unreasonable.

http://www.kscourts.org/ca10/cases/2007/04/06-6274.htm

United States v. Freeman, 479 F.3d 743 (10th Cir. 2007). In a parolee search case, denial of a motion to suppress evidence resulting in a plea to being a felon in possession of a firearm is reversed where: 1) the search at issue was not valid without reasonable suspicion; 2) under the totality of the circumstances, officers did not have a reasonable suspicion to search defendant's home without consent, without the presence of a parole officer, and in violation of Kansas Department of Corrections rules governing parolee searches; and 3) the search could not be upheld as a protective sweep.

http://www.kscourts.org/ca10/cases/2007/03/05-3437.htm

United States v. Engles, ___ F.3d ___ (10th Cir. No. 06-5076, filed 3/30//2007). An Oklahoma officer had cited the defendant for driving while suspended. An informant later told the officer that he failed to detect a large amount of methamphetamine in the defendant's car on that stop. The officer saw defendant driving again two months later. The officer ran the defendant's DL and found he was still suspended. He stopped the car. While approaching, he saw the handle of a large knife between defendant's leg and the console. He ordered defendant out at gunpoint. After arresting the passenger on a warrant, another officer found drugs on her. After a 25-minute wait, a drug dog hit on the vehicle. The search yielded drugs and a handgun. Defendant claimed the evidence should have been suppressed because his car was illegally detained while awaiting the dog. The Circuit disagreed. It held that a dog sniff of the exterior of a car is not a search and does not require reasonable suspicion It noted that because both persons in the vehicle were validly arrested, the fact they remained at the scene rather than being carted off to jail should not somehow transform the sniff into a search.

Martinez v. Carr, No. 06-2069 (10th Cir. March 27, 2007). Martinez went to the fair and had an altercation with officers. He was taken to fair police headquarters by Officer Carr and told to sign a citation or he would be taken to jail. He signed the citation and was escorted out of the fair. He later sued Officer Carr claiming he was falsely arrested and imprisoned. The district court denied Officer Carr summary judgment saying that Officer Carr seized Martinez. The 10th Circuit reversed, holding that the issuance of a citation, even under threat of jail if not accepted, does not rise to the level of a Fourth Amendment seizure.

http://www.kscourts.org/ca10/cases/2007/03/06-2069.htm

United States v. Guerrero, ___ F.3d ___ (10th Cir. No. 06-3123, filed 1/2/07). Deputies Rhodd and Bronaugh were eating lunch at Quizno's and approached two Hispanic males they saw at Phillips-66. Rhodd said they looked unusual because one was dressed in jeans and the other in dress clothes, they were different ages, and their car had a California tag, a source state for drugs. Questioned separately about their travel plans, the men gave different answers. The key to the car was alone on a single ring, and the car had religious paraphernalia on the gear shifter. Rhodd considered both to be characteristics of drug runners. Rhodd asked for the men's ID and registration for the vehicle. Guerrero provided a California DL and the other man provided a Mexican ID. Guerrero didn't seem to know who owned the car, but read "Gouidimas" off the registration and said it was his girlfriend. The owner's name was Elizabeth Goudima. The DL was valid and neither man had warrants, but the car had been in and out of Mexico several times in the past few months. Rhodd called EPIC, which told him, incorrectly, that Guerrero was not legally permitted in the US. After 10-12 minutes, Rhodd returned their documents and thanked them for their time. He turned and walked away, but turned around after a few seconds and asked several more questions,eventually obtaining consent to search the car, where he found 4.5 kilograms of methamphetamine near the gas tank. Guerrero claims his motion to suppress should have been granted because he was illegally detained. The 10th Circuit found that Rhodd had reasonable suspicion to detain based on the men's inconsistent stories about travel plans and Guerrero's mispronunciation of the name of the owner of the car, discounting Rhodd's other factors. The court also held that consent to search was voluntarily given after the stop turned back into a voluntary encounter. See United States v. Arivizu, 534 U.S. 266, 273 (2002).

State v. Landis, ___ Kan.App.2d ___, ___ P.3d ___ (No. 95466, 3/16/2007). A trooper stopped a car and found marijuana in it. The driver first said she bought it from a guy named "John" in Wichita, then later said she bought it from the defendant. She also stated that she purchased it from him on several occasions in the past. Officers obtained a warrant for defendant's residence and found drugs and paraphernalia. Defendant alleged the evidence should be suppressed because the affidavit failed to mention the driver's conflicting statements about the source of the drugs and the affidavit on its face did not establish probable cause. The Court of Appeals agreed. They treated the driver as a criminal informant involved in illegal activity, noted that the police corroborated nothing other than defendant's address, and the material omission in the affidavit required suppression of the evidence. The state never argued for the Leon exception, so that issue was waived.

http://www.kscourts.org/kscases/ctapp/2007/20070316/95466.htm

United States v. Freeman, 479 F.3d 743 (10th Cir. 2007). In a parolee search case, denial of a motion to suppress evidence resulting in a plea to being a felon in possession of a firearm is reversed where: 1) the search at issue was not valid without reasonable suspicion; 2) under the totality of the circumstances, officers did not have a reasonable suspicion to search defendant's home without consent, without the presence of a parole officer, and in violation of Kansas Department of Corrections rules governing parolee searches; and 3) the search could not be upheld as a protective sweep.

United States v. Meredith, ___ F.3d ___ (5th Cir. No. 05-31071, filed 2/26/2007). In the context of a lawful vehicle stop, after ordering an occupant to exit a vehicle and hearing that he claims to be physically unable to do so, an officer may open the occupant's door and conduct a minimally necessary visual inspection of the person of that occupant. Further, if this inspection reveals articulable facts constituting reasonable suspicion that the occupant is armed and dangerous or is concealing contraband, he may be patted down to the same extent as he could have been if he had complied with the order to exit the vehicle.

State v. Anguiano, ___ Kan.App.2d ___, ___ P.3d ___ (No. 95716, 2/16/2007). A deputy saw a Hispanic male walking that "semifit" the description of a wanted person. That description was of a Hispanic male wearing a dark coat and "dark-type green colored pants." (The stop occurred on St. Patrick's day). Anguino was wearing "grayish-green pants" and a coat. .When the deputy approached, Anguiano looked away. The deputy stopped Anguiano, asked his name and where he was going. Anguiano said he was coming from a beef plant, which did not make sense to the deputy because Anguiano should have been walking in the opposite direction if coming from the plant. The deputy asked Anguiano if he had been to neighboring apartments well known for drug sales and whether he had bought drugs. Anguiano stated no to both questions. The deputy then asked for consent to search, which Anguiano gave. The deputy located cocaine in Anguiano's coat pocket. Anguiano argued that he had been illegally detained and his consent was invalid. The Kansas Court of Appeals agreed,. holding that the stop was not supported by reasonable suspicion, and there were no intervening circumstances to separate Anguiano's consent from his unlawful detention.

Sentencing

Kimbrough v. United States, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 06-6330, filed 12/10/2007). The U.S. Supreme Court ruled that federal judges have the ability to reduce sentences in cases involving crack cocaine, since the U.S. Sentencing Guidelines in such cases are advisory only, not mandatory. Although crack and powder cocaine have the same physiological and psychotropic effects, they are treated very differently for sentencing purposes.

http://supct.law.cornell.edu/supct/html/06-6330.ZO.html

State v. Ruiz-Reyes, ___ Kan.App.2d ___, ___ P.3d ___ (No. 95056, filed 01/12/2007). Defendant possessed cocaine with intent to sell in 1999 in Ford County and on December 15, 2000, in Reno County. He was convicted of the Ford County offense on April 15, 2004. The Reno County prosecutor moved to amend the severity level from 3 to 2 based on the Ford County "prior." At sentencing, Ruiz-Reyes objected to the severity level determination because the "prior" offense occurred before the current conviction. The district court overruled the objection. The Court of Appeals reversed, distinguishing State v. Bandy, 25 Kan.App.2d 696, 700, 971 P.2d 749 (1988), rev denied 266 Kan. 1100 (1999), based on the different language in K.S.A. 21-4710(a) vs. K.S.A. 65-4160 [ and 65-4161(b)].

Traffic Stops

United States v. Zamudio-Carrillo, 499 F.3d 1206 (10th Cir. 2007). Denial of a suppression motion in a prosecution for drug and immigration crimes is affirmed where: 1) there was ample support for a conclusion that a trooper had probable cause to arrest defendant based on an objectively reasonable suspicion he was traveling in tandem with a vehicle transporting drugs in a hidden compartment and, thus, was involved in criminal activity; and 2) consequently, defendant's arrest, detention, and a subsequent inventory search of his vehicle did not violate the Fourth Amendment.

http://www.kscourts.org/ca10/cases/2007/08/06-3193.htm

In Re J.M.E., ___ Kan.App.2d ___, ___ P.3d ___ (No. 97,780 filed 7/27/2007). Kansas courts have recognized four categories of police-citizen encounters: (1) arrests supported by probable cause; (2) stops made in accordance with Terry v. Ohio, 392 U.S.1, 88 S.Ct. 1868, 20 L.Ed. 2d 889 (1968); which are supported by reasonable and articulable suspicion of criminal activity; (3) volunteer encounters that are not seizures; and (4) community caretaking functions. City of Topeka v. Graubauskas, 33 Kan.App.2d 210, 214, 99 P.2d 1125 (2004).

United States v. Valenzuela, 494 F.3d 886 (10th Cir. 2007). An officer stopped a car for crossing a lane divider line without signaling (it went 3-4 feet into the right-hand lane, and remained there for several seconds). The driver did not have a license, and the officer asked him to step out. When outside the car, the officer asked if any weapons or illegal items were in the car. The driver said not that he was aware of. When the officer asked for consent to search, the driver said there was a shotgun in the back seat. The officer cuffed the driver, then removed all other occupants and cuffed them as well. Defendant claimed the evidence should have been suppressed because there was no reasonable suspicion for the stop and/or the detention exceeded reasonable duration and/or scope. The Circuit disagreed. It distinguished the brief lane crossing in United States v. Gregory, 79 F.3d 973 (10th Cir. 1996), and stated that questioning unrelated to the reason for the stop is permissible if the questions do not appreciably prolong the stop. United States v. Alcaraz-Arellano, 441 F.3d 1252, 1959 (10th Cir. 2006), cf. United States v. Holt, 264 F3d. 1215 (10th Cir. 2001) modified by United States v. Stewart, 473 F.3d 1265 (10th Cir. 2007).

United States v. Brown, ___ F.3d ___ (10th Cir. No. 05-3400, filed 4/30/2007). Brown went to a motel at 1:30 a.m. in Hays and registered. He got nervous when the desk clerk told him his vehicle information would be given to police. He left in his car. The clerk called police, who stopped Brown after seeing him cross the fog line three times, causing the officer to be concerned the driver might be drunk or sleepy or have a medical condition. After the officer turned the detention back into a voluntary encounter, Brown consented to a search and a lengthy detention and another search occurred, eventually yielding cocaine. Brown contended there was no reasonable suspicion for the stop based on State v. Ross, 37 Kan.App. 2d 126, 149 P.3d 876, rev. denied 284 Kan. ___ (2007). The Circuit disagreed, finding that when a vehicle repeatedly crosses out of its lane without apparent justification an officer can reasonably suspect the driver did not intentionally move out of his lane and thus failed to first ascertain the movement could be made with safety.

http://www.kscourts.org/ca10/cases/2007/05/05-3400.htm

State v. Moore, 283 Kan. 344, 154 P.3d 1 (2007). Trooper Jimerson and a junction city officer were parked in the median of I-70 and saw two cars headed Eastbound, one closely following the other. Jimerson testified the rear vehicle was only about a car length behind the other, and timed the distance as .72 second. He stopped the trailing car. The driver was "highly nervous" and Jimerson noticed the "slight odor" of fabric softener. Jimerson gave the driver his documents back, said that was "all he had for him," then asked if the driver would answer some questions. The driver agreed, and, if you believe Jimerson's testimony, consented to a search of the car. The fabric softener smell was much stronger in the back seat, and Jimerson first pulled out an ashtray in the quarter panel, then pulled molding from around the door edge and panel, finding marijuana. Jimerson testified that before he did so, he noticed a non-factory hinge on the quarter panel and non-factory felt. The driver alleged several grounds for suppression, including that Jimerson exceeded the scope of the consent search and, even if he didn't, such consent did not extend to disassembling the car. The Supreme Court rejected these arguments, holding that Jimerson's testimony about the scope of the consent was believable, and the disassembly of the vehicle only occurred after probable cause developed.

http://www.kscourts.org/kscases/supct/2007/20070316/93386.htm

State v. Hess, 37 Kan.App.2d 188, 153 P.3d 557 (2007). In Hess, a deputy made a car stop after he observed the car traveling close to the lane divider lines and perceived that the vehicle would occasionally drive upon or touch the broken lines. The Hess court held that hugging the lines or driving on the lines did not provide reasonable suspicion to stop an automobile without the presence of other indicators of possible intoxication, such as erratic driving or weaving.

United States v. v. Guerrero, 472 F.3d 784 (10th Cir. 2007). If officers merely examine an individual’s driver’s license, a detention has not taken place. When officers retain a driver’s license in the course of questioning, that individual, as a general rule, will not reasonably feel free to terminate the encounter. Handing back defendants’ papers, thanking them for their time, and beginning to walk away are generally sufficient to terminate the detention. Returning a driver’s documentation may not end the detention if there is evidence of a coercive show of authority, such as the presence of more than one officer, the display of a weapon, physical touching by the officer, or his use of a commanding tone of voice indicating that compliance might be compelled. A defendant’s consent must be clear, but it need not be verbal. Consent may instead be granted through gestures or other indications of acquiescence, so long as they are sufficiently comprehensible to a reasonable officer. Non-verbal consent may validly follow a verbal refusal.

State v. Ross, 37 Kan.App. 2d 126, 149 P.3d 876, rev. denied 284 Kan. ___ (2007). Officer was following a vehicle and saw it cross over the fog line once. He stopped the car for an alleged violation of K.S.A. 8-1522(a) [same as STO 46]. The driver was suspended, and had cocaine and paraphernalia on him. At trial, Ross argued the evidence should have been suppressed because there was no reasonable suspicion to stop the car. Examining the statutory language, which requires a vehicle to be driven "as nearly as practicable within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety," the court agreed with Ross. Finding no evidence that drifting over the fog line created a safety issue, the court held the evidence should have been suppressed. It reasoned that automobiles are not "railway locomotives," and do not run on "fixed rails." It went on to say that drivers are not only permitted, but sometimes required to move a vehicle out of its lane (to avoid a pothole, to pass a slower-moving vehicle, etc), and as long as such a movement can be made safely, there is no reasonable suspicion of a violation of the statute. Notably, the officer in Ross did not testify that moving out of a lane could indicate the driver was sleepy or intoxicated, which must be articulated to support a valid safety stop. See State v. Vistuba, 251 Kan. 821.

http://www.kscourts.org/kscases/ctapp/2007/20070119/94503.htm

Search and Seizure

State v. Bastian, 37 Kan.App.2d 156, 150 P.3d 912 (2007). Sheriff's deputies responded to a suspicious person call when Bastian drove his pickup under the deck of a rural Butler county residence. Officers found Bastian bent down doing something in the area of his feet. They ordered him out at gunpoint and patted him down. Then, they saw a syringe and a bullet in plain view on the console of the pickup and searched the truck but found nothing illegal. They then questioned Bastian about why he was on the property, and noticed he appeared to be under the influence of alcohol or drugs. Just prior to having Bastian perform field sobriety testing, an officer ordered him to empty his pockets. Bastian had several baggies of methamphetamine in his pockets. The Court of Appeals ordered the methamphetamine suppressed because officers did not have probable cause to search Bastian's person at that time.

State v. Agron, 149 P.3d 547 (Kan.App. No. 95,697, filed 01/12/07, unpublished). The presence of a city street sign on a vacated road distinguishes the stop in this case from State v. Knight, and failure to signal a turn was reasonable suspicion to stop the defendant's car. Rest is quoted from the case:

Section 1 of the STO defines "private road or driveway" as "[e]very way or place in private ownership and used for vehicular travel by the owner and those having express or implied permission from the owner, but not by other persons." In contrast, § 1 of the STO provides the following definition of "street or highway":


    "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. Where the word 'highway' or the word 'street' is used in this ordinance, it shall mean street, avenue, boulevard, thoroughfare, trafficway, alley and other public way for vehicular travel by whatever name unless the context clearly indicates otherwise."


         Further, the trial court distinguished Knight on the basis that the Wichita ordinance at issue differed from both K.S.A. 8-1548 and § 54 of the STO. In Knight, a Wichita ordinance provided:


    " '(a) No person shall turn a vehicle at an intersection unless the vehicle is in proper position upon the roadway as required in Section 11.28.030, or turn a vehicle to enter a private road or driveway, or otherwise turn a vehicle from a direct course or move right or left upon a highway unless and until such movement can be made with reasonable safety, and no person shall so turn any vehicle without giving an appropriate signal in the manner hereinafter provided." ' 33 Kan.App.2d at 327.


         In State v. Henning, 95,708, unpublished opinion filed July 14, 2006, a panel of this court affirmed the trial court's grant of defendant's motion to suppress evidence. This court followed the reasoning of Knight and concluded that the defendant did not violate K.S.A. 8-1548(a) when he turned from a liquor store parking lot onto a highway without signaling.


          Henning provides the logical link between the ordinances at issue here and in Knight. Section 54 of the STO is all but identical to K.S.A. 8-1548(a), which the Henning court determined was "basically the same" as the Wichita ordinance in Knight. Henning, slip op. at 6. Knight and Henning are distinguishable from the present case in one respect, however. In those cases, no challenge was made to the private nature of the parking lots, whereas here, the parties disputed whether Birch Street was private property or a public street. Birch Street still had the city street sign on it. With that street sign, Officer Carl had an objectively reasonable good faith belief that Agron's conduct violated the law.

State v. Hoeck, 284 Kan. 441, 163 P.2d 252 (2007). Defendant was stealing from her employer. A detective obtained a warrant to seize her computer. The affidavit was attacked for failing to establish a nexus between the criminal activity and the place searched. The Supreme Court breathed new life into the good faith exception under United States v. Leon, 468 U.S. 897, 82 L. Ed. 2d 677, 104 S. Ct. 3405, reh. denied 468 U.S. 1250 (1984). The Fourth Amendment exclusionary rule should not be applied to bar the use of evidence obtained by officers acting in reasonable reliance on a search warrant issued by a detached and neutral magistrate but ultimately found to be invalid, except where: (1) the magistrate issuing the warrant was deliberately misled by false information; (2) the magistrate wholly abandoned his or her detached or neutral role; (3) there was so little indicia of probable cause contained in the affidavit that it was entirely unreasonable for the officers to believe the warrant was valid; or (4) the warrant so lacked specificity that officers could not determine the place to be searched or the items to be seized. The Leon good faith exception applies when an affidavit does not supply a substantial basis for the determination of probable cause but does provide some indicia of probable cause sufficient to render official reliance reasonable. We disapprove any language in State v. Longbine, 257 Kan. 713, 721-22, 896 P.2d 367 (1995), disapproved on other grounds by State v. Hicks, 282 Kan. 599, 147 P.3d 1076 (2006), State v. Ratzlaff, 255 Kan. 738, 754-55, 877 P.2d 397 (1994), and State v. Doile, 244 Kan. 493, 495, 769 P.2d 666 (1989), abrogated on other grounds by Horton v. California, 496 U.S. 128, 110 L. Ed. 2d 112, 110 S. Ct. 2301 (1990), applying the test of whether there is a substantial basis for the determination of probable cause to the determination of whether the good faith exception to the Fourth Amendment exclusionary rule applies.

http://www.kscourts.org/Cases-and-Opinions/opinions/supct/2007/20070706/95830.htm

State v. Warren, ___Kan.App.2d ___(11/30/2007). Reginald Warren was stopped for speeding. He had a suspended driver’s license, no proof of insurance and improper registration. Since he could not drive the car away and it was in a heavily trafficked area, police impounded the car, but did not arrest Warren. Before leaving the scene, he asked to retrieve some items from the car. Unsure of his safety, the officer searched the car first. He searched extensively throughout the interior and trunk. He opened a day planner and noticed that it belonged to someone other than Warren. He then started searching more thoroughly and found stereo equipment in the back seat. This information eventually lead to a warrant from a neighboring city to search the car. Warren was ultimately convicted of burglary, theft and criminal damage to property. The Kansas Court of Appeals found, with minimal explanation, that while the law lets the officer search for weapons for officer protection, in this case the officer’s search exceeded the scope of the stop and the evidence obtained must be suppressed and Warren must be given a new trial. The Court refused to apply the inevitable discovery doctrine because the Roeland Park Police Department had no policy about inventorying impounded vehicles.

http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2007/20071130/94694.htm

United States v. Jacob Pierce Finley, ___ F.3d ___ (5th Cir. No. , filed 1/26/2007). Midland Police Officers and DEA agents arrested Finley in a motor vehicle shortly after he and his partner delivered methamphetamine to a police informant. When they arrested him, they seized a cell phone from his pocket, then delivered him to an address at which other officers were serving a search warrant. They questioned him about the delivery and other drug transactions, and believed his answers to be untruthful. During the questioning, a DEA agent began searching the phone's call records and text messages, a number of which appeared to be related to drug trafficking, and confronted Finley with the incriminating messages. Evidence of the text contents was used against the Defendant at trial after the Court denied Defendant's Motion to Suppress the evidence. Defendant's Suppression Motion was based on the argument that the search of the cell phone was unlawful because it had occurred without a search warrant. The Court of Appeals found that the search was lawful, holding that: "in the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a 'reasonable' search under that Amendment." The Court went further to explain that: "police officers are not constrained to search only for weapons or instruments of escape on the arrestee's person; they may also, without any additional justification, look for evidence of the arrestee's crime on his person in order to preserve it for use at trial." In a footnote, the Court addressed the issue of searching the phone after he had already been taken into custody and transported to another place: "The fact that the search took place after the police transported Finley to Brown's residence does not alter our conclusion. Searches and seizures that could be made on the spot at the time of arrest may legally be conducted later when the accused arrives at the place of detention. In general, as long as the administrative processes incident to the arrest and custody have not been completed, a search of effects seized from the defendant's person is still incident to the defendant's arrest. Although the police had moved Finley, the search was still substantially contemporaneous with his arrest and was therefore permissible."



2006 Case Update List

January 1, 2006 to December 31, 2006 (or thereabouts)


Arrest and Detention

State v. Parker, ___ Kan. ___, ___ P.3d ___ (No. 92541, filed 12/82006). A Wichita police officer approached three black men hanging out in a garage apartment complex because he had never seen them there before. As the officer pulled into the driveway and parked behind two other cars, one of the men picked up some money from the concrete floor. Another left the area. The one that picked up the money and another approached the officer while he was still in his car. The officer asked what was going on and whether the men lived in the apartment complex. On nodded that he did. The officer noticed this man had his right hand concealed, and concerned that he might have a weapon, the officer quickly exited his patrol car and asked the person's name, then asked both men to lift their shirts and turn around. Both complied and no weapons were found. The suspect, Parker, then gave police a false name, Galbreath. The officer asked the other man if he had anything illegal on him, and the man confessed he had a blunt. He was immediately arrested. Other officers were arriving, and the initial officer asked one to keep an eye on Parker while he ran him for warrants. The false name Galbreath had a possible warrant. At one point, Parker asked for permission to speak with the initial officer, which was granted. Parker asked to leave. The request was denied. The initial officer asked Parker if he had anything illegal on him. Parker said no, then granted consent for a pat down. Parker then produced a large wad of cash and a plastic baggie from his pocket and kept in a clenched fist. The first officer announced it was "dope," and then Parker fled. While being tackled, Parker flung the bag, later determined to be cocaine. The district court denied Parker's motion to suppress. The Supreme Court reversed. It said although the initial stop was a voluntary encounter, it became a detention when the initial officer received information about a possible warrant. The Court held there was no reasonable suspicion for the detention at that point, the consent was involuntary, and suppressed the cocaine. Two judges concurred, saying they believed the detention began when the initial officer asked the men to lift their shirts and turn around.


Civil & Criminal Liability

Anderson v. Blake, 469 F.3d 910 (10th Cir. 2006). Anderson, a rape victim, sued Officer Blake, who gave a videotape of her rape to a television reporter. Officer Blake alleged he was entitled to qualified immunity. The Circuit held that Ms. Anderson had a constitutionally protected privacy interest in the tape, despite the lack of a case on point in the 10th Circuit. The Court said "it is not surprising, given our precedent, that we should reach such a conclusion. If a person has a legitimate expectation of privacy in a diary, in undressing before a guard, or in answering questions concerning sexual history, certainly a person has a reasonable expectation that a video of his or her rape will not be aired to thousands in a public news broadcast." Finding that a reasonable officer should have known that disclosure would violate a clearly established right, and there was no compelling need for the disclosure, the Circuit affirmed denial of qualified immunty.

Graves v. Thomas, ___ F.3d ___ (10th Cir. No. 05-7084, filed 6/22/2006). In a 42 U.S.C. section 1983 arising out of plaintiffs' son's death while he was pursued in a high-speed chase by police, summary judgment for all defendants is affirmed where there was no error in a conclusion that plaintiff failed to raise a material issue of fact as to whether the actions of defendants violated their son's substantive due process rights under the Fourteenth Amendment.

http://laws.lp.findlaw.com/10th/057084.html

Oliveros v. Mitchell, ___ F.3d ___ (10th Cir. No. 05-2163 filed 5/17/2006). After a high-speed chase, an officer's firearm accidentally discharged into Jeremy Blouin's hip. Blouin later died in an unrelated swimming accident. His personal representative then sued the officers and their city employer for excessive and/or negligent use of force. The district court held that any intentional tort claims and any § 1983 claim arising out of defendants' alleged misconduct did not survive the decedent's unrelated death. It also held the officer was immune for any negligent torts under the New Mexico tort claims act. The Tenth Circuit affirmed.

http://www.kscourts.org/ca10/cases/2006/05/05-2163.htm

Harman v. Pollock, 446 F.3d 1069 (10th Cir. 2006). Grant of qualified immunity to defendants in a 42 U.S.C. section 1983 case arising out of an allegedly wrongful detention of plaintiffs during a midnight law enforcement raid is reversed in part as to plaintiffs' claims of an unlawful search and seizure where there were material factual disputes about when officers should have realized they were at a separate residence not encompassed by a warrant.

Cortez v. McCauley, 478 F.3d 1108 (10th Cir. 2007)(en banc). Officers received a call from a hospital that Cortez allegedly molested a two-year old girl. The went to Cortez's house at approximately 1 a.m., ordered the couple out of their home, handcuffed the husband, interrogated them in the back seat of police cars and searched their house. Later information from the hospital showed the girl had not been molested, and approximately one hour later, the Cortez couple was released. The Couple sued the officers for violation of their Fourth Amendment rights. Defendant's moved for summary judgment based on qualified immunity. The district court denied their motion and they appealed. The Tenth Circuit affirmed, holding the the jury could determine the plaintiff's were arrested (as to the husband) and detained (as to the wife) and whether the officers had arguable probable cause to arrest the husband or detain the wife based on their lack of investigation. Officers offered no evidence to show the search fell within the exigent circumstances or emergency exception. However, officers should be granted summary judgment on the excessive force claim if the jury determines the arrest was unlawful, since the excessive force claim is derivative, or the use of force was objectively reasonable. Temporary red marks on wrists cause by handcuffs is not excessive force if the use of cuffs is otherwise justified. If the jury merely determines the husband was detained, the excessive force claim should go to the jury. Officers should have been granted summary judgment on the wife's excessive force claim. Taking someone by the arm during an investigative detention does not amount to excessive force.

Rothbrust v. City of Grandview, Missouri, district court case profiled in Kansas Lawyer, v. 16 No. 3, Week of 1/22/ - 1/28/06. Court approves settlement of 2.98 million to a 17-year old hurt by a former Grandview police officer chasing a stolen car through Leawood. The officer ran a red light and hit broadside the car in which Rothbrust was a passenger. Both officers involved in the chase were cited with reckless driving. One went diversion, and the other pled no contest. Neither officer is still with the department.

Driving While Suspended

State v. Hamic, ___ Kan.App.2d ___, ___ P.3d ___ (No. 94881, filed 3/3/2006). Officer saw a vehicle he believed belonged to Janet Hamic-Deutsch. He knew she had been stopped twice in the past two months and cited for driving while suspended and no insurance. He ran the tag and it came back to her. He stopped the vehicle and found drugs. Hamic was a passenger in the vehicle. She filed a motion to suppress claiming the officer had no reasonable suspicion for the stop. The district court granted the motion. The Court of Appeal reversed. It held that the two prior stops created a reasonable suspicion Hamic was still driving without a valid license and insurance. Most would suspect that multiple arrests for such offenses would impair the driver's ability to obtain affordable insurance, and the officer could rely on the fact that driving while suspended leads to a further suspension of driving privileges. It is reasonable to assume that the registered owner is operating the vehicle in the absence of evidence to the contrary. Most people wave or honk at their friend's vehicles even before they know for certain the friend is in the vehicle.

United States v. Laughrin, ___ F.3d ___ (10th Cir. No. 04-2207, filed 3/2/2006). Officer stopped a driver suspecting that his license was suspended based on prior contacts. Those contacts occurred at least 22 weeks before the stop in this case. The officer saw in plain view a sawed-off shotgun in the car, leading to a federal weapons conviction. Laughrin alleged the gun should have been suppressed because the officer had no reasonable suspicion to stop the car. The Court agreed, finding the information was too stale to justify the stop.

DUI

Martin v. Kansas Department of Revenue, ___ Kan.App.2d ___, ___ P.3d ___ (No. 94,509, motion to publish granted 7/18/2007). Where the defendant challenges KDHE protocol requiring officers to keep "the subject in your immediate presence and deprive the subject of alcohol for 20 minutes immediately preceding the breath test," strict adherence to the testing procedures is not required where there is no evidence indicating the Intoxilyzer malfunctioned or the breath sample was contaminated. The testing procedures substantially complied with the "immediate presence" requirement for an alcohol breath test where the officer stepped out of the testing room several times for only a few seconds at a time, and the defendant does not suggest that his breath sample was contaminated or the Intoxilyzer malfunctioned. Defendant had admitted to five or six beers and blew a 0.235 on the breath test.

http://www.kscourts.org/kscases/ctapp/2006/20060811/94509.htm

State v. Moody, ___ Kan. ___, ___ P.3d ___ (No. 92,248, filed 10/27/2006). Under the facts of this case, where a defendant with three prior DUI convictions receives notice in the complaint of the severity level of the DUI offense charged, is informed at the plea hearing of the maximum penalty for a fourth DUI offense, and prior to imposition of the statutory sentence admits she had three prior convictions, the defendant has been afforded due process and is appropriately sentenced as a fourth-time DUI offender, although the complaint alleged only "two or more" prior offenses. Follows State v. Masterson, 261 Kan. 158, 929 P.2d 127 (1996), and overrules State v. Dyke, 33 Kan.App.2d 167, 100 P.3d 972 (2003).

State v. Wahweotten, 36 Kan.App.2d 568, 584-85, 143 P.3d 58 (2006), rev. denied 283 Kan. 933 (2007). State's comment during closing argument about Defendant's refusal of the breath test did not improperly shift the burden of proof to the defendant. Such evidence is clearly admissible under K.S.A. 8-1001(i).

State v. Stevens, 36 Kan. App. 2d 323, 138 P.3d 1262 (2006). Deficient sample breath tests are admissible under K.S.A.8-1567(a)(3) as "other competent evidence." Cf. State v. Hermann, 33 Kan.App.2d 46, 99 P.3d 632 (2004)(deficient samples are not admissible as other competent evidence under K.S.A. 8-1567(a)(1)).

Martin v. Kansas Department of Revenue, 36 Kan.App.2d 561, 142 P.3d 735 (2006)(affirmed 285 Kan. 625, 176 P.3d 938 (2008). Reasonable suspicion for a stop is not an issue to be determined in an administrative driver's license suspension proceeding for failure of a breath test.

Leffel v. Kansas Dept. of Revenue, ___ Kan.App.2d ___, ___ P.3d ___ (No. 93,897, filed 7/21/2006). Shortly after 1 a.m. an officer saw Leffel's car cross the centerline and then straddle the centerline for approximately one and a half blocks. The officer stopped the car and upon approaching Leffel, the officer smelled a strong odor of alcohol, noted that Leffel had red eyes and his speech was slurred. The officer asked Leffel if he had been drinking. Leffel responded that "he had a couple." He exhibited clues on field sobriety tests, although he claimed his performance on the on-leg stand was caused by physical limitations. A PBT performed on an Alco-sensor IV. showed the presence of alcohol, and the officer arrested Leffel. Leffel appealed his driver's license suspension and alleged the officer had no probable cause to arrest him. The Court of Appeals held the state failed to show the Alco-sensor IV was an approved PBT device, but the arresting officer's testimony provided substantial competent evidence to support the trial court's decision that there was probable cause to believe that the defendant was driving under the influence of alcohol.

City of Manhattan v. Feril, ___ Kan.App.2d ___, ___ P.3d ___ (No. 94,525 filed 5/19/2006). Officer received information via radio from a neighboring jurisdiction that a white pickup with Texas tags was driving without its headlights. Officer later found that pick up parked. He approached and defendant got out of the driver’s seat. He had the usual indicators of impairment by alcohol and blew a 0.180. Defendant claimed there was no reasonable suspicion for a stop and city failed to prove identity. The Court of Appeals rejected both claims finding there was no stop, and the identity of the perpetrator is not part of the corpus delicti of the crime of DUI, and identity can be proved by the defendant’s own confession.

http://www.kscourts.org/kscases/ctapp/2006/20060519/94525.htm

Employment

Locurto v. Guiliani, ___ F.3d ___ (Nos. 04-6480, 6489 & 6499 (2d Cir. 4/27/06). Mayor Guiliani had sufficient grounds to terminate city firefighters who participated on a racist float in a New York City Labor Day parade. The men donned black faces, lipstick and afro wigs, and road a float called "Black to the Future - Broad Channel 2098." The float was intended to predict how the community would look in the future if the neighborhood became more integrated. The float also depicted a murder by dragging. Guiliani fired the men after the press backlash. The district court ordered the men reinstated. The Second Circuit reversed. It held that Guiliani's concern for disruption was reasonable given the media reaction and the city's turbulent history with race relations.

Evidence

State v. McHenry, ___ Kan.App.2d ___, ___ P.3d ____ (No. 93,872, unpublished opinion filed 06/30/06). Testimony of a drug recognition expert (DRE) is admissible outside of Frye because it related to physiological conditions within the common knowledge of the jurors. The DRE's testimony was limited to the kinds of symptoms different drugs produce and the symptoms the officer observed in the defendant.

State v. Curls, ___ Kan.App.2d ___, ___ P.3d ___ (No. 94629, filed 5/5/2006, motion to publish granted 10/10/06). TPD officers responded to a violation of a protective order call involving Larry Curls. Curls called the victim every half hour over the course of a day. Responding officers did not listen to the messages, nor record them, nor note any of the telephone numbers on her caller ID unit. Curls alleged he didn't make the calls. The trial judge believed the victim over Curls. Curls appealed, claiming the evidence was insufficient. The Court of Appeals rejected the argument, but stated: "Curls' argument might have been precluded by the officers taking the time to listen to the messages recorded on Murdock's phone in order to corroborate her testimony. For the officers to decline Murdock's invitation to do so can only be deemed curious police work; clearly the better practice dictates that investigating officers confirm any recorded call messages when given the opportunity to do so."

Davis v. Washington, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 05-5224 & 05-5705, filed 6/19/2006). Two consolidated cases dealing with Confrontation rights under Crawford. In the Davis case, 911 tape of a domestic call was admitted into evidence although victim did not testify at trial. In Herman, a battery affidavit signed by Herman's wife a day or two after the battery was admitted into evidence although Herman's wife did not testify. The court held the 911 tape was nontestimonial, while the battery affidavit was. "Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution."

http://supct.law.cornell.edu/supct/html/05-5224.ZO.html

State v. Blanchette, ___ Kan.App.2d ___, ___ P.3d ___ (No. 93,962, filed 5/19/2006). Crawford v. Washington, 542 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2005) only prohibits introduction of testimonial hearsay when the defendant is denied the opportunity to cross-examine the declarant. Crawford does not make K.S.A. 22-3434 unconstitutional. Also, review of alleged prosecutorial misconduct requires a two-step analysis: the appellate court must determine whether the comments were "outside the wide latitude the prosecutor is allowed in discussing evidence" and (2) whether the appellate court decides the statements are plain error that "prejudice the jury against the defendant and deny [him] a fair trial." State v. Elnicki, 279 Kan. 47, 58, 105 P.3d 1222 (2005).

http://www.kscourts.org/kscases/ctapp/2006/20060519/93962.htm

United States v. Leonard, ___ F.3d ___ (10th Cir. No. 04-6361, filed 2/24/2006). David Leonard, an unlicensed driver, caused an accident resulting in the death of two people. He was charged with second degree murder and other lesser offenses. Leonard complained that admission of his driving record was not relevant to prove anything and its prejudicial value outweighed its probative value. The court held that admission of the driving record was proper to show malice aforethought required for second degree murder. Citations for driving while suspended, like citations for drunk driving, "convey to the malefactor society's considered view that the cited conduct is dangerous." Persisistent violations of the requirement to meet all safety regulations and qualifications show a "conscious disregard for these considerations." The district court also correctly admitted Leonard's prescription drug history.

State v. Taylor, ___ Kan.App.2d ___, ___ P.3d ___ (No. 91994, 01/20/2006). There was no impermissible inference-stacking resulting in the conviction of the defendant of possession of anhydrous ammonia in an unapproved container and possession of drug paraphernalia. Taylor's parole officer saw Taylor driving around Hutchinson and gave chase, which lasted about 25 minutes. Taylor and accomplice bailed on foot and their car struck a light pole. Officers found an anhydrous tank in the trunk and various items of paraphernalia in the car. A canine and an officer tracked the vehicle occupants by smell and footprints in the snow to a garage apartment behind Taylor's mothers house, where officers found a partial meth lab. On the knowledge question, the court said the suspicious behavior by the defendant (chase, bailing on foot, paraphernalia in the car) gave the jury enough to find that Taylor had knowledge of the anhydrous in the trunk.

First Amendment

Shrum v. City of Coweta, ___ F.3d ___ (10th Cir. No. 04-7037, filed 6/8/2006). The First Amendment applies to exercises of executive authority no less than it does to the passage of legislation. Partial denial of a police chief's motion for summary judgment on federal constitutional claims on qualified immunity grounds is affirmed in part as to denial of summary judgment on the freedom of association and free exercise claims, and is reversed in part as to denial of summary judgment on substantive due process claims where plaintiff had recourse to an explicit textual source of constitutional protection via his other claims.

Forfeiture

State ex. rel. Topeka Police Department v. $895. U.S. Currency and 3.15 Grams Cocaine, ___ Kan. ___, ___ P.3d ___ (No. 94,719, filed 5/5//2005). The Board of Indigent Defense Services (BIDS) does not have standing to file a claim in a forfeiture action for anticipated attorney fees. BIDS was not an "owner" or "interest holder" within the meaning of K.S.A. 60-4111. The money was seized at the time of Maurice Wright's arrest, and BIDS never acquired an interest in those specific funds.

Insurance

Via Net v. TIG Ins. Co., 50 Tex. Sup. Ct. J. 296, 211 S.W.3d 310, 314, 2006 WL 37593890 (2006). In attempting to avoid a statute of limitations defeat of its claim of breach of contract, Safety Lights argues that it acted diligently by obtaining a certificate of insurance (from Via Net) listing it as an additional insured. But the certificate warned that it conferred no rights and was limited by the underlying policy. Safety Lights argues, with some force, that there is little use for certificates of insurance if contracting parties must verify them by reviewing the full policy. But the purpose of such certificates is more general, “acknowledging that an insurance policy has been written, and setting forth in general terms what the policy covers.” BLACK'S LAW DICTIONARY 240 (8th ed.2004). Given the numerous limitations and exclusions that often encumber such policies, those who take such certificates at face value do so at their own risk.

Interrogation

United States v. Phillips, ___ F.3d ___ (10th Cir. No. 06-7026, filed 11/15/2006). Phillips was arrested for robbery and taken to the police station. In response to a question from a detective, Phillips said he was limping because he had been shot. The detective used that statement in a search warrant affidavit for buccal DNA which later tied Phillips to a gun used in the robbery and later, charges for felon in possession of a firearm. Phillips alleged the warrant should be quashed because the Detective did not give him Miranda warnings prior to obtaining the statement. The Circuit disagreed, holding that physical evidence obtained as a fruit of a voluntary statement is admissible despite the lack of Miranda warnings. Follows United States v. Patane, 542 U.S. 630 (2004).

Sanchez-Llamas v. Oregon, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (Nos. 04-10566 & 05-51, 2006). Violation of Article 36 of the Vienna Convention by failure to notify an arrested foreign nation of their right to contact their consular officer will not result in exclusion of an otherwise knowing, intelligent and voluntary confession. In these cases, Sanchez-Llamas, a Mexican national, got involved in a shootout with police during which one officer was wounded. Police Mirandized Sanchez-Llamas and he made several incriminating statements, but police never told him about his Article 36 rights. In the other case, Bustillo, a Honduran national, was one of several men involved in an altercation with another man who was struck with a baseball bat and subsequently died. Bustillo was charged with murder, and claimed that had he been notified of his Article 36 rights his consular officer could have assisted him in locating and securing the attendance of the"true suspect." The Court found that Article 36 violations did not require application of the exclusionary rule, which "is not a remedy we apply lightly," due to its "'costly toll' upon truth-seeking and law enforcement objectives." Additionally, the court sees no reason to suspend the procedural default rule as to Bustillo's claim, which he failed to raise in the lower court.

State v. Ackward, 281 Kan. 2, 128 P.3d 382 (2006). Confession was voluntary despite Detective Hill providing defendant false information, making religious appeals and making misstatements of the law. Admission of gun recovered from crime scene, although illegally seized after a Miranda violation, was harmless error due to evidence the defendant had a gun. And district court did not err in instructing jury that defendant was not justified in use of force in self defense due to evidence the defendant was engaged in a forcible felony, possession of marijuana with intent to sell. Felony murder conviction of Joshua Buckman and possession with intent to sell convictions are affirmed.

Jurisdiction

State v. Elliott, 281 Kan. 583, 133 P.3d 1253 (2006). Are prior municipal convictions valid to enhance a subsequent sentence when state law indicated the offense was a felony? No. Does city have subject matter jurisdiction to prosecute offenses state law makes a felony? No. Municipalities could not prosecute third or subsequent DUI violations because they were statutorily designated as felonies.

http://www.kscourts.org/kscases/supct/2006/20060428/92853.htm

Miscellaneous

Scheidler v. National Organization for Women, Inc., ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 04-1244, filed 2/28/2006). Abortion providers brought suit against abortion protesters seeking damages for extortion under the Hobbs act (18 U.S.C. § 1951(a)) and RICO (18 U.S.C. § 1962) violations. The Court held that physical violence unrelated to robbery or extortion falls outside the scope of the Hobbs act, therefore Defendant's were entitled to judgement as a matter of law.

Municipal Court Appeals

City of Dodge City v. Reyes, 35 Kan.App.2d __, 133 P.3d 1291 (2006). The failure of the defendant and the municipal judge to sign an appearance bond is not jurisdictionally fatal to a municipal court appeal, where a surety filed an adequate appearance bond.

http://www.kscourts.org/kscases/ctapp/2006/20060519/94806.htm

Search & Seizure

State v. Kotas, ___ Kan.App. ___, 134 P.3d 677 (2006). U-turn on a bridge over a double solid yellow line was reasonable supicion to stop a car. Ultimately it will be for the district court to determine whether the State can prove its allegation beyond a reasonable doubt. For purposes of evaluating the propriety of this car stop, however, we hold that Deputy Sims had a reasonable belief based upon objective and articulable facts that Kotas' U-turn violated K.S.A. 8-1546(a). As a result, the car stop was valid and seizure of the evidence did not violate the Fourth Amendment to the United States Constitution or K.S.A. 22-2402(1).

State v. Delgado, 36 Kan.App.2d 653, 143 P.3d 681 (Kan.App. 2006). Stop of a vehicle for one excessively dim headlight was based on reasonable suspicion the vehicle was being operated in violation of K.S.A. 8-1725.

United States v. McCullough, ___ F.Supp. ___ (2004 WL 1099777 D.Kan. 2004), affirmed 457 F.3d 1150 (10th Cir. 2006).. Officer's warrantless entry into the home was justified by exigent circumstances. Officers responded to a burglar alarm call. They saw two people with dirty clothes coming out of the basement. They were nervous and fidgety. They explained they were there building a fence, and had permission from the homeowner to use the bathroom in the house, although they did not know the homeowner's name. The female subject dialed her cell phone and handed it to the officer, saying the person on the other end would be the homeowner. It wasn't. The dialed again and a female identified herself as the homeowner and said the two had permission to be there while building a fence, although she did not know or could not recall their names. At that point, officers entered the house thinking a burglary might be in progress. They saw a bag a marijuana in plain view, and a open trash bag containing a larger quantity of marijuana. They exited the house and obtained a warrant. The court held their initial entry into the home was justified by exigent circumstances.

State v. Gonzales, 36 Kan.App.2d 446, 141 P.3d 501 (2006). Stop for a bouncy rear tire and open fuel hatch cover was a valid public safety stop, but officer illegally continued detention after dispelling safety concerns.

United States v. Torres-Castro, ___ F.3d ___ (10th Cir. No. 05-2357, filed 12/12/2006). A protective sweep by police is only valid when performed incident to an arrest, and such sweeps are not allowed based solely on reasonable suspicion that officers' safety is at risk.

State v. Ibarra, 282 Kan. 530, 147 P.3d 842 (2006). An officer stopped a car for no tag light, and smelled the strong odor of ether coming from the car. Consent to search was refused. The officer removed the driver and looked in the back seat, finding a jar containing a white powdery substance. They field tested it, and it was positive for methamphetamine. Officers then secured a warrant and searched the car, finding more methamphatamine and a mobile lab. The Court held that the strong odor of ether, even without a legitimate explanation, does not constitute probable cause for a search of a car. They reasoned that while the odor of marijuana or alcohol may constitute probable cause, the presence of a noncontrolled substance by itself does not.

State v. Hicks, ___ Kan. ___, ___ P.3d ___ (No. 93,602, filed 12/8/2006). A Hoistington officer presented an affidavit for search warrant to a magistrate that said in essence, concerned citizens in the nighborhood though Hicks was dealing drugs due to a high rate of short term traffic. Officers checked backgrounds on a few of the visitors and found drug convictions in their past. One unidentified neighbor had knocked on Hick's door one night, and a large amount of marijuana smoke was present. Another unidentified citizen told police that Hick's put out certain colored front porch light bulbs (presumably when he had dope to sell) and the short-term traffic increased. Officers had also done two trash pulls on the residence and located marijuana stems and seeds and a partial roach. The magistrate issued the warrant. The district court suppressed the dope seized pursuant to the warrant finind the affidavit insufficient. On appeal, the Court held that the proper standard for review is inherently deferential to the magistrate and only requires a "substantial basis" to believe the facts contained therein amount to probable cause for a search. The Court found the officer's affidavit insufficient because it was based on uncorroborated hearsay, the spotty surveillance of Hick's residence for two or three weeks combined with somewhat stale criminal histories of Hicks and his visitors did not establish probable cause, and the trash pulls were insufficient because there was no indicia of Hick's residency and officers did not see him place the bags where police collected them.

United States v. Cruz-Mendez, 467 F.3d 1260 (10th Cir. 2006). Officers went to a woman's apartment believing she may be harboring an alien that had a warrant. She let them in, but refused consent to search until officers saw a male's coat and a cell phone marked "Cruz" in plain view. Officers eventually located the suspect, although it turned out he was not the suspect named in the warrant. Officers do not need reasonable suspicion to conduct a "knock & talk" because it is a consensual encounter. Also, the presence of several officers and asking for ID and proof of legal resident status does not turn a consensual encounter into a seizure.

State v. Gonzeles, ___ Kan.App.2d ___, ___ P.3d ___ (No. 93,845, filed 8/252006). Trooper saw a car with a bouncing tire and open gas tank hatch. He stopped the car, questioned the occupants, requested wants and warrants and III, then finally checked the bouncing tire 8 minutes into the stop. While the passenger was sitting in the cruiser, the trooper returned his ID and told him he was free to go, then in the same breath, asked more questions and eventually sought consent to search and found drugs in the vehicle. The defendant's motion to suppress should have been granted. Although the stop was a valid safety stop, the trooper exceeded the reasonable scope and duration of a safety stop.

State v. Vandevelde, 36 Kan.App.2d 262, 138 P.3d 771 (2006). Officers Monasmith & Hilt stopped a truck after seeing it leave an apartment complex known for drug trafficking and seeing it commit a traffic violation. Hilt parked his bicycle in front of Vandevelde's truck. As Hilt was looking at Vandevelde through the front windshield, Hilt saw Vandevelde move his right hand towards the middle of the truck and reach down quickly as if he were trying to retrieve an item. Similarly, Monasmith testified that he saw Vandevelde reach towards the middle of the seat as if he were trying to reach for an item or conceal something. When Hilt saw Vandevelde make such movements, Hilt started giving Vandevelde verbal commands to place his hands up so that the officers could see them. Hilt testified that he yelled four times quickly, "Put your hands up." Hilt testified that he then drew his gun because he was concerned that Vandevelde could be reaching for a weapon. Officers removed Vandevelde from the truck, arrested him, searched him and either had him stand by the truck where he was searched at the same time as the truck (Hilt), or Vandevelde was arrested, searched and placed in the back seat of a police car, then the truck was searched (Monasmith). Officers found a crack pipe and rock cocaine in the truck, and also found that Vandevelde had warrants for his arrest. The Court of Appeals concluded the evidence should have been suppressed because it wasn't a valid search incident to arrest for "city interference," it could not be justified as a search incident to arrest for the purpose of protecting the officers from attack under K.S.A. 22-2501 because Vandevelde had been removed from the truck and items inside could no longer pose a threat to the officers; there was no probable cause for an automobile search, and the evidence would not have been inevitably discovered because police had no lawful reason to impound the vehicle.

State v. Thompson, 284 Kan. 763, ___ P.3d ___ (No. 94,254, filed 9/7/2007), reversing 36 Kan.App.2d 252, 138 P.3d 398 (2006). In an almost textbook "turn a traffic stop back into a voluntary encounter" case, an officer stopped Thompson for a faulty headlight. The officer called for a back, telling the back officer he intended to seek consent to search the vehicle. Once the back arrived, the contact officer issued Thompson a verbal warning, returned the driver's license and insurance documents and told the driver to "have a good day." Although the officer testified that he then started to walk away but returned within a second or two, the video tape showed that the officer did not leave the vicinity of the defendant after telling him to have a good day, but rather, immediately after the defendant had stated thank you to the officer, the officer asked Thompson if he could ask him some additional questions, which eventually resulted in Thompson giving consent. The officer found drug paraphernalia and finished methamphetamine in powder form. Thompson later gave written consent to search his garage, where a host of additional manufacturing paraphernalia was found. Thompson alleged his consent was coerced. The Court of Appeals agreed, holding that failure to actually disengage at the conclusion of the traffic stop, and failure to turn off emergency lights on the patrol vehicle constituted continued detention exceeding the scope or duration necessary to effectuate the purpose of the traffic stop without reasonable suspicion. The Kansas Supreme Court reversed the Court of Appeals, holding that it had failed to properly apply the totality of the circumstances test. The Court of Appeals had explained its amazing conclusion thusly:


Weighing the totality of the circumstances here, we believe the following factors compel the conclusion that Thompson had no objective reason to believe that he was free to end his conversation and drive away after the return of his documentation: (i) The officer expressed a prestop desire to seek consent to search the Thompson vehicle; although this may have little to do with the objective belief of Thompson, the officer's intent to effect a search undoubtedly influenced his actions in the encounter; (ii) the district court found there was no disengagement of the officer after returning the documentation; as noted above, this finding is paramount to our conclusion; (iii) the emergency lights of the patrol vehicle continued to be activated at the time consent was requested; and (iv) the defendant testified that he did not feel free to go when the officer asked about further questioning; although the applicable standard is "a reasonable person," the defendant's actual state of mind is not irrelevant in considering the totality of circumstances. Given the burden of proof on the State, we conclude that Thompson submitted to a claim of lawful authority rather than consented as a voluntary act. The district court erred in refusing to suppress the fruits of the searches of Thompson's vehicle and garage.


We recognize that the suppression of the evidence here may deal the prosecution a near fatal blow in this case, but our conclusion is based upon sound Fourth Amendment jurisprudence developed in Kansas. At the heart of the Fourth Amendment is a strong requirement of specific justification for any intrusion upon protected personal liberty and security, coupled with a highly developed system of judicial controls to enforce the commands of our Constitution upon the agents of the State. Our court has experienced ever-increasing appeals with nearly identical fact patterns, indicating that there may be a perception in the field that a "bright line rule" merely requires the return of documentation to cleanse additional questioning. This has given rise to what has been characterized as "the Lieutenant Columbo gambit," or the "by the way, can I ask you just one more question?" When evaluating such action under Fourth Amendment jurisprudence and Kansas statutes, the State has the burden to demonstrate that the driver has an objective reason to believe that he or she was free to simply terminate the encounter and drive away. See K.S.A. 22-3216(2); [State v.] Hayes, 35 Kan. App. 2d 616; [133 P.3d 146 (2006);] [United States v.] Sandoval, 29 F.3d [537 (10th Cir. 1994] at 540. Often the balance is between vindicating the officer's hunch and actualizing the liberty interest under the Fourth Amendment; in close cases, the preferred choice between such interests is clearly in favor of the Fourth Amendment rights of the driver.

Samson v. California, 547 U.S. 843, 126 S.Ct. 2193, 165 L.Ed.2d 250 (2006). In 1996 the California Legislature adopted Penal Code section 3067, mandating that every prisoner eligible for release on state parole "shall agree in writing to be subject to search or seizure by a parole officer or other peace officer at any time of the day or night, with or without a search warrant and with or without cause." Petitioner Samson is a parolee who was arrested for drug possession after a search that was instigated solely because of his parolee status. Samson argued that under the Fourth Amendment he enjoys a diminished yet reasonable expectation to privacy that is eliminated by California's 1996 parole search condition, which Samson claimed "confers unfettered discretion on law enforcement officers to conduct searches of parolees." The Supreme Court held that the Fourth Amendment does not prohibit a police officer from conducting a suspicionless search of a parolee. Extends the ruling in United States v. Knights, 534 U. S. 112, in which the Court found reasonable the warrantless search of a probationer's apartment based on reasonable suspicion and a probation condition. Parolees, who are on the 'continuum' of state-imposed punishments, have fewer expectations of privacy than probationers, because parole is more akin to imprisonment than probation is. 'The essence of parole is release from prison, before the completion of sentence, on the condition that the prisoner abides by certain rules during the balance of the sentence.' http://www.law.cornell.edu/supct/html/04-9728.ZS.html

Hudson v. Michigan, 547 U.S. 586, 126 S.Ct. 2159, ___ L.Ed.3d ___ (2006). In a 5-to-4 holding, the Supreme Court has refused to exclude evidence from a home search where the usual "knock and announced" rule was not complied with. The majority explained that although the knock-and-announce rule helps prevent violence from a surprised resident and protects personal privacy, the application of the Exclusionary Rule should not be automatic. Excluding relevant incriminating evidence results in the release of dangerous criminals. Moreover, a knock-and-announce rule can result in the destruction of evidence and might promote "life-threatening resistance."

Brigham City v. Stuart, 547 U.S. 398, 126 S.Ct. 1943, ___ L.Ed.3d ___ (2006). At about 3 a.m., four police officers responded to a call regarding a loud party at a residence. Upon arriving at the house, they heard shouting from inside, and proceeded down the driveway to investigate. There, they observed two juveniles drinking beer in the backyard. They entered the backyard, and saw—through a screen door and windows—an altercation taking place in the kitchen of the home. According to the testimony of one of the officers, four adults were attempting, with some difficulty, to restrain a juvenile. The juvenile eventually broke free, swung a fist and struck one of the adults in the face. The officer testified that he observed the victim of the blow spitting blood into a nearby sink. The other adults continued to try to restrain the juvenile, pressing him up against a refrigerator with such force that the refrigerator began moving across the floor. At this point, an officer opened the screen door and announced the officers’ presence. Amid the tumult, nobody noticed. The officer entered the kitchen and again cried out, and as the occupants slowly became aware that the police were on the scene, the altercation ceased. The officers subsequently arrested respondents and charged them with contributing to the delinquency of a minor, disorderly conduct, and intoxication. In the trial court, respondents filed a motion to suppress all evidence obtained after the officers entered the home, arguing that the warrantless entry violated the Fourth Amendment. The court granted the motion, and the Utah Court of Appeals affirmed. The Supreme Court reversed, holding the emergency doctrine allowed the warrantless entry. "In these circumstances, the officers had an objectively reasonable basis for believing both that the injured adult might need help and that the violence in the kitchen was just beginning. Nothing in the Fourth Amendment required them to wait until another blow rendered someone "unconscious" or "semi-conscious" or worse before entering. The role of a peace officer includes preventing violence and restoring order, not simply rendering first aid to casualties; an officer is not like a boxing (or hockey) referee, poised to stop a bout only if it becomes too one-sided."

http://supct.law.cornell.edu/supct/html/05-502.ZO.html

Bliss v. Franco, ___ F.3d ___ (10th Cir. No. 04-2078, filed 4/26/2006). In a case involving a mistaken probation field inspection, summary judgment for defendants, probation officers, on 42 U.S.C. section 1983 and New Mexico Tort Claims Act claims and denial of plaintiffs' request for additional discovery is reversed in part as to a grant of qualified immunity to defendants on a claim of an unreasonable residential search, and as to summary judgment on unlawful detention and arrest claims. http://www.kscourts.org/ca10/cases/2006/04/04-2078.htm

Georgia v. Randolph, 547 U.S. 103, 126 S.Ct. 1515, 164 L.Ed.2d 208 (2006). Consent to search common areas given by one occupant is not valid when another occupant is present and objects to the search. Scott and Janet Randolph were married, but suffered some difficulties. Janet took her son and went to stay with her parents in Canada for a couple months. She and the son then returned to the marital residence, and two days later Janet called police for a domestic dispute. Janet told police that Scott used cocaine. Scott returned and said it was Janet who abused drugs and alcohol. Janet later told police there was drug stuff in the house. Officers sought permission to search from Scott, but he unequivocally denied consent. Janet gave consent, and officers saw, in Scott's bedroom, a drinking straw and a white powdery substance. The officers collected the plain view evidence and called the DA's office, who advised them to get a warrant. Janet then withdrew her consent. Officers took the Randolphs and the straw to the police station, and returned to the residence with a search warrant, seizing other drugs and paraphernalia. Scott was indicted for possession of cocaine, and moved to suppress the evidence claiming the initial consent search was illegal. The United States Supreme Court, in a 5-3 decision, agreed. Although an occupant with apparent authority over common areas can give valid consent and the evidence can be used against an absent co-occupant, United States v. Matlock, 415 U.S. 164, 170 (1974), the court held "a situation in which two persons have equal use and control of the premises to be searched, we conclude the consent to conduct a warrantless search of a residence given by one occupant is not valid in the face of the refusal of another occupant who is physically present at the scene to permit a warrantless search." The court reasoned that the apparent authority doctrine is premised on an assumption of risk theory, and that theory does not apply when the co-occupant is actually present and objects to the search. The dissent criticizes this "arbitrary" rule, and states, '[t]he end result [of the majority opinion] is a complete lack of practical guidance for the police in the field, let alone for the lower courts." Randolph, ___ U. S. at ___ (Roberts, C.J., dissenting).

United States v. Gabaldon, ___ F.3d ___ (10th Cir. No. 05-3231, filed 2/24/2006). Trooper stopped a car for crossing the fog line. While approaching the car, he saw coolers in the back seat, one of which appeared to be sealed with silicone. The trooper issued a warning, returned the driver's documents and told him to be careful and drive safely. After taking a few steps, the Trooper asked if the driver minded answering a few questions. The driver refused consent to search the car, but consented to a dog sniff of the exterior. The dog alerted to the vehicle and the Trooper recovered 213 pounds of marijuana. The driver moved to suppress claiming that he was illegally detained. The Court held the consent to the dog sniff occurred during a voluntary encounter and provided probable cause for the search. The court will not presume that any encounter with a uniformed police officer is coercive.

Roska v. Sneddon, 437 F.3d 964 (10th Cir. 2006), previous appeal Roska v. Peterson, 328 F.3d 1230, 1253-54 (10th Cir. 2003). Defendants, police officers and social workers, were not entitled to qualified immunity when, in the absence of exigent circumstances, they entered plaintiff's home without knocking or seeking a warrant and removed her 12-year old son from the home. The warrantless seizing of a child without prior notice and a hearing or exigent circumstances violated the plaintiff's Fourteenth Amendment rights. Remanded to determine whether reliance on statute or advice of legal counsel made their conduct objectively reasonable. On remand, the district court granted plaintiff summary judgment on liability and, because defendants failed to comply with the statute on which they based their qualified immunity claim (statute requiring consideration of whether providing services would negate need to remove the child), the 10th Circuit affirmed.

United States v. Briseno, ___ F.3d ___ (10th Cir. No. 03-8099, unpublished opinion filed 1/18/2006). Officer stopped vehicle for failure to display a registration. As he approached the vehicle, he noticed a temporary tag taped to the tinted back window. He detained the driver and passenger for 18 minutes, then issued the driver a citation, returned his paperwork and told them they were free to go. The officer asked if the men had any questions, then asked if they would mind answering some. They said ok, and eventually consented to search of the vehicle yielding nine pounds of marijuana and seven pounds of methamphetamine. The men claimed the officer detained them too long, and their consent was involuntary. The court rejected their arguments, saying the law allows officers to inquire about identity and travel plans, request a driver's license and vehicle registration and run computer checks as long as there is reasonable suspicion of a traffic violation.

Bastible v. Weyerhaeuser Co., ___ F.3d ___ (10th Cir. No. 05-7037, 05-7038 & 05-7039, filed 2/13/2006). Private employers act of searching its employee's cars while parked in the workplace parking lot, and terminating those employees for violating the employer's rule prohibiting possession of firearms on the employer's property, did not violate the Fourth Amendment, even though the local sheriff ran tags on the vehicles and notified the employer who owned the vehicle. The search was not government action, nor carried out by someone acting under color of law as required by 42 U.S.C. § 1983.

Sentencing

State v. Black, ___ Kan.App.2d ___, ___ P.3d ___ (No. 94,599, filed 9/15/2006). A defendant may not receive jail time credit for time spent in an Adult Daily Reporting Center program as a condition of probation. The program, which requires participants to be at its facility only during the day if they do not have a job or are not participating in some other authorized activity, does not come within the "residential facility" language of K.S.A. 21-4614a(a).

Traffic Stops

Thomas JG Martin vs. Kansas Department of Revenue, 36 Kan.App.2d 561, 142 P.3d 735 (2006), affirmed 285 Kan. 625, 176 P.3d 938 (2008). The officer observed "Martin driving his vehicle with the passenger side brake light inoperable. Two other brake lights (the one on the driver's side and the one in the lower portion of the rear window) were operating properly." The Court of Appeals then comments that the officer mistakenly believed that the traffic statutes required that all the brake lights be operable. The statute that applies is K.S.A. 8-1708(a), which states in large part that "Every motor vehicle...shall be equipped with two (2) or more stop lamps meeting the requirements of K.S.A. 8-1721...except cars manufactured prior to 1953." Then looking to K.S.A. 8-1721(a), it says basically that vehicles shall be equipped with a stop lamp or lamps on the rear of the vehicle which shall display a red or amber light, visible from a distance of 300 feet to the rear and which shall be actuated upon application of the service or foot brake. So if a vehicle has a brake light out but there are still two operating brake lights anywhere on the back of the vehicle (including the rear window), then that vehicle cannot be stopped solely for the reason of having an inoperable brake light.

United States v. v. Herrera, 444 F.3d 1238 (10th Cir. 2006). A conviction for drug-related offenses is vacated pursuant to a claim of erroneous denial of a suppression motion where a stop of defendant's truck violated the Fourth Amendment as his truck was not subject to a state regulatory scheme that permitted random inspections of certain commercial vehicles, and the good-faith exception to the exclusionary rule did not apply under the circumstances.

State v. Hamic, ___ Kan.App.2d ___, ___ P.3d ___ (No. 94881, filed 3/3/2006). Officer saw a vehicle he believed belonged to Janet Hamic-Deutsch. He knew she had been stopped twice in the past two months and cited for driving while suspended and no insurance. He ran the tag and it came back to her. He stopped the vehicle and found drugs. Hamic was a passenger in the vehicle. She filed a motion to suppress claiming the officer had no reasonable suspicion for the stop. The district court granted the motion. The Court of Appeal reversed. It held that the two prior stops created a reasonable suspicion Hamic was still driving without a valid license and insurance. Most would suspect that multiple arrests for such offenses would impair the driver's ability to obtain affordable insurance, and the officer could rely on the fact that driving while suspended leads to a further suspension of driving privileges. It is reasonable to assume that the registered owner is operating the vehicle in the absence of evidence to the contrary. Most people wave or honk at their friend's vehicles even before they know for certain the friend is in the vehicle.

United States v. Laughrin, ___ F.3d ___ (10th Cir. No. 04-2207, filed 3/2/2006). Officer stopped a driver suspecting that his license was suspended based on prior contacts. Those contacts occurred at least 22 weeks before the stop in this case. The officer saw in plain view a sawed-off shotgun in the car, leading to a federal weapons conviction. Laughrin alleged the gun should have been suppressed because the officer had no reasonable suspicion to stop the car. The Court agreed, finding the information was too stale to justify the stop.

Use of Force

Sanders v. Thomas, ___ F.3d ___ (10th Cir. No. 05-4024, filed 01/24/2006). Case was properly dismissed for failure to state a claim. Sanders claimed the officers used excessive force to subdue and arrest him, and violated his rights by subjecting him to a warrantless search. Officers tried to stop Sanders based on his erratic driving, thinking he was possibly DUI. Sanders tried to elude and steered his vehicle into oncoming traffic, eventually fleeing on foot. When officers caught him, they hit him in the face and kicked him. After being restrained, Sanders told the officers he had swallowed drugs, so the officers took him to a hospital for a urine test. The court held the officer's use of force was objectively reasonable, and the warrantless search incident to arrest was justified by exigent circumstances.































2005 Case Update List

January 1, 2005 to December 31, 2005 (or thereabouts)


 to prior year lists.

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

Full text of 10th Circuit decisions: http://www.kscourts.org/ca10/

Full text of Kansas Appellate decisions: http://www.kscourts.org/kscases/


Appointed Counsel

State v. Robinson, ___ Kan.App.2d ___, ___ P.3d ___ (No. 91875, filed 4/1/2005). District courts must tax appointed defense counsel costs against defendants, but the court can waive reimbursement after considering the defendant's financial circumstances.

Civil & Criminal Liability

Becerra v. Unified Government of Wyandotte County, Kansas, ___ F.3d ___ (10th Cir. No. 04-3397, filed 12/27/2005). City and firefighter were not liable for fatal accident resulting in Becerra's death. Fire figher was enroute to an emergency call and running lights and siren. He ran a red light after slowing down, and didn't see Becerra's car until it was too late to avoid the collision. The district court denied the fire fighter's qualified immunity claim under County of Sacramento v. Lewis, 523 U.S. 833 (1998), applying a "deliberate indifference" standard. The Tenth Circuit reversed, holding that Lewis clearly makes the standard "shock the conscience" and nothing the fire fighter did shocked the court's conscience. The fire fighter had no intent to harm Becerra, therefore, he should be granted qualified immunity.

Harris v. Coweta County, ___ F.3d ___, 2005 WL 901889 (11th Cir. 4/20/05). High speed ramming of a fleeing speeder was held to be deadly and excessive force for which the pursuing officer is not entitled to qualified immunity. The chase began when the suspect refused to stop after being seen speeding 73 mph in a 55 mph zone. A supervisor authorized a "PIT" but the suspect was going too fast. Instead, the pursuing officer rammed the suspect, causing him to lose control, leave the roadway, head down an embankment and crash, rending the suspect a quadriplegic.

Castle Rock, Co. v. Gonzales, 545 U.S. 748 (2005). City is not liable for city police officers' failure to enforce a restraining order against Gonzales' ex-husband. The ex abducted three children from the home on 6/22/1999. Gonzales called police numerous times, and each time was told there was nothing the police could do. Around 8:30 p.m., Gonzales reached her ex on his cell phone and found that he and the daughters were at an amusement park. She notified police, but they still refused to act. About 3:20 a.m., the ex drove to the police station, got out of his truck and began firing a semi-auto handgun. After cops shot him, they discovered the bodies of the three daughters in the truck. The Tenth Circuit ruled that the officers violated plaintiff's rights, but the law was not clearly established, so the officers were entitled to qualified immunity, but the city had no such immunity. Gonzales v. City of Castle Rock, 366 F.3d 1093 (10th Cir. 2004). The United States Supreme Court reversed, finding the alleged mandatory arrest statute in Colorado still gave the officers discretion on how and when to enforce domestic restraining orders, particularly when the suspect is not present. The mandatory arrest or seek a warrant statute was not sufficiently clear enough to create a constitutionally protected property interest.

Young v. City of Providence, ___ F.3d ___ (1st Cir. No. 04-1374, 1390 and 1418, filed /2005). City could be liable to the mother of an off-duty police officer shot by an 8-day rookie. Two on-duty officers responded to a restaurant fight. They saw a guy run to a car with a gun. The rookie officer left his position of cover and positioned himself in front of the suspect vehicle. About that time, the off-duty officer ran out of the restaurant holding his gun with two hands and yelling "Police" "Freeze" or words to that effect. At that time the rookies opened fire on him. The First Circuit held there was sufficient evidence that a jury could find the City failed to properly train its officers in their "always armed/always on duty" policy, and that such failure to train could constitute deliberate indifference.

Guiterrez v. Hackett, ___ F.3d ___ (10th Cir. No. 04-2104, filed 5/3//2005). The jury did not err in concluding the use of a canine to bite and hold the defendant was an acceptable use of force. The defendant broke in to a car in the middle of the night, and would not respond to officer's commands to get out of the car. He also kept his hands hidden from view, and received three warnings that if he did not come out, a canine would come in after him. The jury's verdict was supported by the evidence.

Lawrence v. Reed, ___ F.3d ___ (10th Cir. No. 04-8030, filed 5/9/2005). Lawrence operated a salvage yard across from a fairground, generating several complaints to the city council about the unsightly derelict vehicles on her lots. Pursuant to a city ordinance, the city notified Lawrence to remove the vehicles. She didn't. The police chief, after consultation with the city attorney, impounded 70 vehicles without a hearing, consent or a warrant. Lawrence sued for violation of her civil rights. The district court granted the police chief qualified immunity based on his consultation with the city attorney and reliance on the ordinance. The Tenth Circuit reversed, finding that the lack of notice and a hearing in the ordinance made it plainly unconstitutional, and that reliance on the city attorney's advice did not constitute an "extraordinary circumstance" entitling the chief to qualified immunity because they never discussed the relevant constitutional law. The Court distinguishes V-1 Oil Co. v. State v. Wyo. Dept. of Environmental Quality, 902 F.2d 1482 (10th Cir. 1990). http://laws.lp.findlaw.com/10th/048030.html

Denver Justice and Peace Committee v. City of Golden, ___ F.3d ___ (10th Cir. No. 03-1470, filed 4/26/2005). Officers served a search warrant on the DJPC offices for documents possibly related to a vandalism incident. Espinosa arrived during the search and provided his identity. An officer patted him down without consent while asking him if he had any knives or weapons. He said no, and the officer did not find any. Espinosa then sued the officer and City claiming the officer violated his Fourth Amendment rights. The officer moved to dismiss based on qualified immunity. The district court denied the motion, finding the law clearly prohibits nonconsensual frisks without reasonable suspicion that the person searched is involved in criminal activity or has a weapon. The Tenth Circuit affirmed, finding such a search is clearly illegal.

Johnson v. Lindon City Corp., ___ F.3d ___ (10th Cir. No. 04-4067, filed 4/25//2005). Judicial estoppel prevents plaintiffs from suing officers and city for false arrest. Plaintiffs became involved in an altercation with an off-duty Sergeant, who arrested them for assault. Plaintiffs entered into "pleas in abeyance" and signed statements in which they admitted they attempted with unlawful force or violence to do bodily injury to the Sergeant. While the Circuit has refused to apply judicial estoppel in the past, the Supreme Court's decision in New Hampshire v. Maine, 532 U.S. 742 (2001) requires it.

Muehler v. Mena, 544 U.S. 93, 125 S.Ct. 1465, 161 L.Ed.2d 299 (2005). Detaining the plaintiff in handcuffs for 2-3 hours while police served a search warrant at her residence did not violate the Fourth Amendment. Police had a warrant to search the house for weapons and knew at least one gang member resided there. They also suspected the individual was armed and dangerous based on his recent involvement in a drive-by shooting. Additionally, questioning the plaintiff about her immigration status during her detention did not violate the Fourth Amendment.

Chavez v. City of Albuquerque, ___ F.3d ___ (10th Cir. No. 03-2195, filed 3/29/2005). Defendant was in a closed city park. He lied to the officer about his name and refused to produce ID. The birthdate he gave matched another violent gang member's race and DOB. Officers ordered Chavez to step out of the car. He locked the door and tried to start the car. Officers broke his window, maced him and gave pursuit, eventually catching him with a bite and hold canine. Throughout discovery and most of the trial, Chavez denied being the subject that was being pursued, but he finally admitted it on cross-examination. The district court set aside the jury verdict for $1.00 as a sanction for his perjury. The Circuit affirmed. http://laws.lp.findlaw.com/10th/032195.html

Marquez v. City of Albuquerque, 399 F.3d 1216, 1220 (10th Cir. 2005). Police officers use of a canine to stop a suspected armed robber that had just led police on a reckless high-speed chase and tried to flee from her crashed vehicle was not excessive. Also, the district court did not abuse its discretion in refusing to allow the testimony of plaintiff's expert, who would have testified that the minimum amount of force was the only lawful force and that the officer violated department policy. His testimony was only "tangentially related" because, even if believed, the jury could still hold the officer acted reasonably.

http://www.kscourts.org/ca10/cases/2005/02/02-2294.htm

Macy's Pays to Settle Racial Profiling Case. AP 1/14/05. Macy's has agreed to pay $600,000 and make sure its security officers adhere to store policy which prohibits using racial or ethnic profiling in detaining suspected shoplifters. Black and Hispanic customers alleged they were more often detained and questioned, searched and handcuffed than white customers. Macy's East Inc. entered into the agreement with New York Attorney General Eliot Spitzer.

Drugs

State v. Jackson, 109 P.3d 203, 2005 WL 823916 (Kan.App.)(summarily reversed) ___ Kan. ___ based on State v. Smith, 4 Kan.App.2d 149, 152, 603 P.2d 638 (1979). In Jackson, the Court of Appeals held that 28.8 grams of cocaine was sufficient evidence of possession with intent to sell. Summarily reversed based on Smith, where the Court of Appeals held a conviction of possession of marijuana with intent to sell was overturned because the only evidence that the marijuana was held for sale was the fact that it was packaged as a one-pound brick.

State v. Castillo, 34 Kan.App.2d 169, 115 P.3d 787, rev. denied 280 Kan. 985 (2005). Where one plastic bag contains the marijuana that leads to a charge of possession of marijuana with intent to sell, it is multiplicitous to also charge the defendant with possession of drug paraphernalia based on the plastic bag in which the marijuana was contained.

Gonzales v. Raich, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 03-1454, filed 6/6/2005). Congresses power under the commerce clause includes the power to prohibit the local cultivation and use of marijuana in compliance with California's medical marijuana law.

DUI

State v. Jarrell, ___ Kan.App.2d ___, ___ P.3d ___ (No. 920541, filed 4/22/ 2005). Defendant committed DUI offenses on May 9, 2002, and September 19, 2002. The complaint in the May 9, 2002, case alleged that Jarrell had two prior convictions on April 9, 1998, and August 31, 2001. Defendant pled to both offenses on December 8, 2003, and alleged that both should be considered third offenses at sentencing. The court rejected his argument and held the convictions were properly treated as third and fourth convictions for sentencing purposes under the DUI statute's provision permitting consideration of "any convictions occurring during a person's lifetime." K.S.A. 8-1567(3).

State v. Chamberlain, ___ Kan. ___, ___ P.3d ___ (No. 91,007 filed 09/30//2005). A DUI diversion agreement carries with it the implied condition that the State, under its police powers, might amend the law or enact new laws that could affect the agreement. Legislation to protect the public safety falls within this reserved power. Because of the State's strong interest in regulating the driving of motor vehicles and the clear evidence of the havoc rendered by drunk drivers, the State has legitimate police power to amend or enact laws designed to penalize and deter persons from driving after consuming alcohol or drugs. The 5-year decay provision incorporated into the diversion agreement referred only to the classification of the 1986 DUI offense and not to future offenses committed under amended statute, and an immunity from a change in the general rules of law will not ordinarily be implied as an unexpressed term of an express contract. See State v. Shelinbarger, 33 Kan. App. 2d 678, 681, 108 P.3d 445, rev. denied 280 Kan. ___ (2005) (quoting Chicago & Alton R.R. v. Tranbarger, 238 U.S. 67, 76, 59 L. Ed. 1204, 35 S. Ct. 678 [1915]).

http://www.kscourts.org/kscases/supct/2005/20050930/91007.htm

Eberle v. Kansas Department of Revenue, 33 Kan. App. 2d 759, 108 P.3d 465 (2005). While a defendant can rescind an initial refusal of a breath test based on the factors in Standish v. Department of Revenue, 235 Kan. 900, 683 P.2d 1276 (1984), once the person has been arrested and leaves the building where the breath testing device is located, they can no longer change their mind. Here defendant was in an accident and refused the test. Twenty three to twenty seven minutes later, officers released him to his wife, the secretary to a county attorney. She advised him that he would be suspended, and they immediately returned to the building and asked to take the test. The deputy advised him it was too late. The Court of Appeal agreed.

State v. Slimmer, ___ Kan.App.2d ___, ___ P.3d ___ (No. 92232, filed 3/4/2005, pet. for review filed 4/01/05). The 2001 amendment to K.S.A. 8-1567(m)(3) that does away with the 5-year decay provision does not violate the Contract Clause of the United States Constitution. Defendant argued that the legislature's removal of the 5-year decay provision in the DUI statute impaired a 1990 diversion agreement with the City of Topeka that "this diversion counts for the next five years as a conviction under State and City law for sentencing purposes in any subsequent D.U.I. case." The Court rejected this contention, stating, "This language contained no promise by the City that the diversion would only count for the next 5 years. The language did not expressly and unequivocally grant Slimmer immunity from future changes in state law; rather, the provision merely apprised Slimmer of then existing state and city law. Furthermore, this incorporation of existing law was of no consequence as existing laws are necessarily read into contracts in order to fix obligations between the parties." [Citation omitted]. See also State v. Shelinbarger, ___ Kan.App.2d ___, ___ P.3d ___ (No. 91,821, filed 3/4/2005, pet. for review filed 04/04/05).

State v. Jones, 279 Kan. 71, 106 P.3d 1 (2005). The State must prove voluntary consent for a Preliminary Breath Test (PBT). Taking deep lung air is a Fourth Amendment search. The State did not meet its burden of establishing that Jones' consent to this search was voluntarily, knowingly, and intelligently given; and the State did not meet its burden of establishing that Jones' consent was impliedly given. Because the officer did not perform any field sobriety tests or other investigation into the DUI claim, there is no probable cause to believe that Jones was DUI. At least that portion of Jones holding that the implied consent statute does not apply to preliminary breath tests under K.S.A. 8-1012 has been legislatively overruled. See L. 2005, ch. 172, § 2 (HB 2385)..

Double Jeopardy

City of Salina v. Amador, 279 Kan. 266, 106 P.3d 1139 (2005), affirming 32 Kan.App.2d 548, 85 P.3d 724 (2004). The City may refile charges in an appropriate court when a dismissal of charges is based on reasons other than the merits of the case. Amador was convicted of battery and criminal damage to property in municipal court. He appealed to district court. On the day of trial, the City's witnesses did not appear. The district court denied the City's motion for a continuance, and granted Amador's motion to dismiss without prejudice for failure to prosecute the case. The city refiled the charges in municipal court and convicted Amador again. Amador again appealed, and moved to dismiss on double jeopardy grounds. The district court dismissed the case, holding the city had to appeal from the prior dismissal. The Court of Appeals reversed, holding Amador's first conviction by the municipal court was vacated by Amador's appeal, and no jeopardy attached in the first appeal because no evidence was heard and no witnesses were sworn.

Employment and Discipline

Yoder v. Town of Middleton, No. 2004-122 (N.H. 2005). Town had sufficient cause to fire a chief of police for stealing $45.00 worth of ammunition and giving it to a mechanic who fixed his car, then lying about it to investigators. Despite the fact he was not prosecuted, taking the property without authorization and then lying about it showed 'egregiously poor judgment' casting doubt on his 'capacity of holding a position demanding integrity." Profiled in Public Employment Law Report, August 2005 p. 9.

Graham v. City of Philadelphia, 2005 W.L. 678552 (3d Cir. 3/35/05). City's failure to reinstate or provide terminated office with a name-clearing hearing die not violate due process. Officer was terminated for having sex with a 13-year old girl. He was charged by the state, but acquitted after trial. The department refused to reinstate Graham based on its policy to not reinstate any officer who has been terminated due to an arrest even where the officer is acquitted at trial. The 3rd Circuit held that the trial process obviated the need for a name-clearing hearing.

FLSA

Beck v. City of Cleveland, Ohio, ___ F.3d ___ (6th Cir. No. 02-3669, filed 11/12/04), cert. denied 545 U.S. ___ (No. 04-1416, 6/20/05). Denial of a police officer's timely request to use accrued compensatory leave solely for financial reasons (to avoid paying overtime to another officer to cover his or her shift) violates 29 U.S.C. § 207(o)(5). The court holds that "unduly disrupt" is ambiguous, and therefore adopts the Secretary of Labor's interpretation in 29 C.F.R. § 553.25(d) that denial of compensatory time to avoid payment of overtime does not qualify as undue disruption.

IBP, Inc. v. Alvarez, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 03–1238, filed 11/8/2005). During a continuous workday, any walking time that occurs after the beginning of the employee’s first principal activity, such as the donning of protective gear, and before the end of the employee’s last principal activity is compensable under the Fair Labor Standards Act (FLSA); however, the time employees spend waiting to don the first piece of protective gear that marks the beginning of the continuous workday is excluded from FLSA coverage.

Evidence

United States v. Bush, ___ F.3d ___ (10th Cir. No. 03-4224, filed 04/26/2005). District court did not err in allowing a detective to offer his lay opinion that "JR's" voice matched that of defendant Bush. The undercover detective had several telephone conversations with Bush, and at least three face-to-face meetings with him, and thus had a basis for knowledge, and the testimony was helpful to the fact finder. Voice identification need only rise to the level of minimal familiarity.

State v. Robinson, ___ Kan.App.2d ___, ___ P.3d ___ (No. 91875, filed 4/1/2005). Crawford v. Washington, 541 U.S. 36 (2004) does not apply to a defendant's own confession. If a suspect waives his Miranda rights and talks to police, his own statements are admissible against him, whether or not he chooses to testify. Furthermore, district courts must tax appointed defense counsel costs against defendants, but the court can waive reimbursement after considering the defendant's financial circumstances.

State v. Elnicki, ___ Kan. ___, ___ P.3d ___ (No. 89003, filed 2/18/2005). Jury should not have been shown portions of interrogation tape in which Detective Hazim expressed opinions on the suspect's lack of credibility, even if they are recommended and effective police interrogation tactics. The district court's failure to give a limiting instruction, coupled with the prosecutor's misconduct during closing argument (suggesting the defendant is a lair) require a new trial.

First Amendment

Faustin v. City and County of Denver, ___ F.3d ___ (10th Cir. No. 04-1025 , filed 9/15//2005). Denver's unwritten policy preventing the display of a banner from a highway overpass visible to traffic below is not substantially overbroad or vague, and defendant is entitled to summary judgment as a matter of law. See Faustin v. City and County of Denver, 268 F.3d 942, 945-47 (10th Cir. 2001) for facts.

Indian Nation License Plates

Prairie Band Potawatomi Nation v. Wagnon, ___ F.3d ___ (10th Cir. No.03-3322, filed March 25, 2005). The State of Kansas is permanently enjoined from enforcing its licensing and registration laws to vehicles that are licensed and registered by the Potawatomi Nation, affirming Prairie Band of Potawatomi Indians v. Pierce, 64 F.Supp.2d 1113 (D.Kan. 1999). See also 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. See also Prairie Band of Potawatomi Indians v. Pierce, ___ F3d. ___ (10th Cir. No. 99-3324, filed 6/25/01). Such tags are currently valid on all public roadways if the car is owned by a Prairie Band Potowatomi member. If the car is owned by a Citizen's Band of Potowatomi member (from Oklahoma), it is an illegal tag. Michael Hale, an attorney at the Department of Revenue, tells me that the issue could go up to the United States Supreme Court.

Interrogation

State v. Robinson, ___ Kan. ___, ___ P.3d ___ (No. 90319, filed 4/22/2005). Although the suspect initially invoked his right to counsel, based on his actions he validly waived the right to counsel. Suspect and his girlfriend killed her parents, then set their house on fire. The suspect was detained and transported to headquarters for questioning. An officer was standing by, but not questioning the suspect. The Suspect volunteered statements about his love for his girlfriend and her motive for committing the crime. The suspect also asked what the bond was for premeditated murder. The standby officer said he did not know. The investigating officer arrived, but the standby officer did not tell him the suspect had requested a court-appointed attorney. Before the interviewer asked suspect his name, the suspect said, "What's the motive? I tried to stop her. She cut my hand through my gloves. What was her motive?" The suspect asked again about a court-appointed attorney and said immediately that his girlfriend cut the phone line. The interviewer interrupted suspect and asked his name, but suspect kept talking. Interviewer then pulled out a form so that he could go over the Miranda rights with suspect. Suspect said he was not going to sign a waiver and that he wanted a lawyer present. Before the interviewer could say anything, suspect stated that his girlfriend had "pulled some stunt" today, that he had gotten cut, and that he was "just an acquaintance, or an accomplice, I don't know." Interviewer said "We need to talk about that," and suspect said, "I can't speak until I have an attorney." Interviewer then explained the waiver form, and the suspect signed it within five minutes after the interviewers arrival. A four-hour interrogation followed, in which the suspect confessed. The court held that the suspect validly waived his right to counsel.

Open Records

Data Tree v. Meek, ___ Kan. ___, ___ P.3d ___ (No. 92596, filed 4/22/2005). Under the specific facts of this case, the Sedgwick County Register of Deeds did not abuse his discretion in determining that public disclosure of the personal information within the documents requested constituted a clearly unwarranted invasion of personal privacy. Redaction of information in public records not subject to disclosure is an act that would be included in the actual costs of furnishing copies under K.S.A. 45-219(c). Nothing in the KORA requires or contemplates shifting any portion of the actual costs of furnishing copies of the requested records from the requester to the custodian of the agency's records. There was no showing that the actions of the Sedgwick County Register of Deeds in responding to Data Tree's open records request were not in good faith. Whether disclosure of social security numbers, mothers' maiden names, and dates of births constituted a clearly unwarranted invasion of personal privacy under K.S.A. 2004 Supp. 45-221(a)(30) was a question of first impression for Kansas courts and was supported by meritorious arguments. Thus, there was a reasonable basis in fact or law for the actions of the Register of Deeds, and the district court did not err in not awarding attorney fees to Data Tree under K.S.A. 45-222(c).

Traffic Stops

United States v. Gregoire, 425 F.3d 872 (10th Cir. 2005). Utah trooper stopped a van for failing to signal when it merged onto a highway. The trooper gave him a warning, then asked if he could question him further. The driver consented, and told inconsistent stories about where he had been and what he had been doing. The trooper asked for consent to search and the driver said he could "empty it if he wanted to." The trooper wanted to, and eventually found a false compartment containing cocaine. Defendant moved to suppress claiming the stop was illegal and continued detention was illegal. The Tenth circuit held that merging from an on-ramp constituted moving a vehicle to the left upon a roadway, thus a signal was required and failure to signal was "reasonable suspicion, indeed probable cause," to stop the vehicle. It also held the driver consented to further questioning, and gave valid consent to search. It noted that consent was not withdrawn even when the trooper drilled two holes through the floorboard, and pried away a piece of the undercarriage with a screwdriver.

United States v. Heriberto Garcia-Rodriguez, ___ F.3d ___ (10th Cir. No. 04-8047 unpublished, filed 4/5/2005). Officer had reasonable suspicion for a traffic stop and subsequent detention and questioning was consensual and based on reasonable suspicion. Trooper stopped vehicle during an overcast day because its headlights were on and one of them was burnt out. When approaching vehicle, trooper noticed four air fresheners. Driver did not have a license, and told the trooper he lost it. He later produced a wallet with a money order made out to Raul Orosco in Long Beach, California. Defendant claimed that was him. Dispatch could not find a DL for Orosco. Defendant advised it should be Orozco. Dispatch found one, but the physical description didn't match the defendant. Trooper issued a "fix-it" ticket and told defendant "good luck" or "have a nice day," or words to that effect, then asked him if there was anything illegal in the vehicle. Based on a consent search, trooper found methamphetamine. The Court held the stop was legal at inception and the detention was based on reasonable suspicion and/or consensual, reasoning there is no requirement the stop for inoperative headlight must occur at night, and there is no requirement to tell a defendant he is "free to go," if his words convey the same meaning. Also, presence of air fresheners, lack of ID and presentment of registration and proof of insurance in someone else's name, along with defendant's nervousness, all added up to reasonable suspicion.

Search & Seizure

United States v. v. Mitchell, ___ F.3d ___ (10th Cir. No. 04-4248, filed 11/21/2005). Defendant's conviction and sentence for possession of stolen mail are affirmed over her claim that the district court erred in denying her motion to suppress evidence where police conducted a warrantless search of a hotel room that had been abandoned by defendant.

http://www.kscourts.org/ca10/cases/2005/11/04-4248.htm

State v. Porting, 281 Kan. 320, 130 P.3d 1173 (2006). A recently-released parolee consented to the search of a residence where he resided growing up and where his parole plan said he would reside when released. Upon his release after serving 18 months, the parolee had his parole officer accompany him to the residence, where his mother and ex-girlfriend resided, because of rumored drug use by his ex. The search of the ex-girlfriend and her current boyfriend's room yielded drugs. The defendants claimed that the parolee did not have authority to consent. The Kansas Supreme Court agreed, citing Georgia v. Randolph, 547 U.S. 103, 126 S.Ct. 1515, 164 L.Ed.2d 208 (2006).

United States v. Nielson. 415 F.3d 1195 (10th Cir. 2005). Law enforcement officers violated the Fourth Amendment when they executed a no-knock search warrant that was not supported by sufficient facts of increased risk to safety. In support of an application for a no-knock warrant, police provided an affidavit reciting three facts to establish probable cause for the search and to support reasonable suspicion for an exemption to the knock and announce requirement. First, when executing the 1999 search warrant at defendant’s home, five weapons and marijuana were found, resulting in charges of possession of a firearm by a convicted felon and misdemeanor possession of marijuana. Second, police received a anonymous report in August 2003 that defendant possessed an automatic weapon and narcotics which were located in the garage. Third, detectives searched defendant’s garbage, seizing marijuana seeds and "five round cloth patches" which they believed to have been used to clean firearms. The application and affidavit requested a no-knock warrant for officer’s safety based on defendant’s past history of possessing firearms and the potential for violence. The judge issued a no-knock warrant. The Tenth Circuit held the warrant application and affidavit did not set out sufficient facts to justify a no-knock entry.

            The no-knock warrant should not have been issued because the officers made no claim that defendant was distributing narcotics or that he had engaged in any prior violent conduct. Moreover, the prior search of defendant’s home resulted in no violence. Although the police had evidence that a firearm was present, that fact by itself does not demonstrate an increased risk beyond that normally faced by law enforcement officers, especially where, as here, their information was that a firearm was in a loft in the garage, and they had no information leading them to believe that defendant had interior access to the garage. Further reasons, such as counter-surveillance activities or children playing nearby, to believe that knocking and announcing police presence would be dangerous or futile are also absent in this case.

United States v. Gregoire, ___ F.3d ___ (10th Cir. No. 04-4254, filed 10/03/2005). Utah trooper stopped a van for failing to signal when it merged onto a highway. The trooper gave him a warning, then asked if he could question him further. The driver consented, and told inconsistent stories about where he had been and what he had been doing. The trooper asked for consent to search and the driver said he could "empty it if he wanted to." The trooper wanted to, and eventually found a false compartment containing cocaine. Defendant moved to suppress claiming the stop was illegal and continued detention was illegal. The Tenth circuit held that merging from an on-ramp constituted moving a vehicle to the left upon a roadway, thus a signal was required and failure to signal was "reasonable suspicion, indeed probable cause," to stop the vehicle. It also held the driver consented to further questioning, and gave valid consent to search. It noted that consent was not withdrawn even when the trooper drilled two holes through the floorboard, and pried away a piece of the undercarriage with a screwdriver.

Douglas v. Dobbs, ___ F.3d ___ (10th Cir. No. 04-2118, filed 8/16/2005). Plaintiff was suspected of prescription fraud. An investigating Sergeant presented an Assistant District Attorney (ADA) with a "Motion and Order to Produce Prescription Information" to police. The ADA approved the Motion and Order and took the officer to obtain a judge's signature, then police served it on a pharmacy. Criminal charges against Douglas were filed, but later dismissed. Douglas then sued the officer and the ADA for violating her Fourth Amendment rights. The district court granted summary judgment. The 10th Circuit affirmed. It held there is a constitutional right to privacy in prescription records but that as to the ADA, merely assisting law enforcement in obtaining the order did not violate the plaintiff's right and the ADA is entitled to qualified immunity.

United States v. Cunningham, ___ F.3d ___ (10th Cir. No. 04-3026, filed 07/01/2005). Inevitable discovery excused a warrantless search. KCK police officers had been investigating a counterfeit check-writing ring and had focused on a duplex as the supplier of the checks - either 1175 E. 76th Terr. or 1179. The duplexes shared a common driveway. The officers presented a warrant to an AUSA, but decided to do further surveillance due to the address confusion. They later did a knock & talk on 1175, and eliminated it as the suspect residence. Officers attempted to get consent from defendant, but he refused. His mother, who just happened to be a KCK detective, eventually talked him in to granting consent. Officers found the counterfeiting supplies they were looking for, but did not seize them. They revised their warrant application with the new information, and obtained a warrant. Although the defendant successfully attacked his consent, the court held the evidence would have been inevitably discovered with a warrant, and was therefore admissible.

United States v. Hauk, ___ F.3d ___ (10th Cir. No. 04-3113, filed 6/24/2005). Kansas City's policy of automatically conducting protective sweeps when in a home to arrest someone on a warrant sweeps too broadly, but under the specific facts of this case, the protective sweep was authorized. An anonymous tipster reported that defendant was a drug dealer, had guns in his residence, and had an associate named Spencer, who drove a red van. Just before officers served the arrest warrant, a red car pulled into the defendant's driveway. Although officers did not see the driver enter the house, it is reasonable to assume that is where he went. While conducting the sweep, they found drugs, resulting in the issuance of a search warrant. While automatic protective sweeps for drug warrants cannot be justified, objective facts indicate that involvement in the drug trade is not uncommonly associated with violence. Here the officers knew (1) that Mr. Hauk violated parole on a drug trafficking charge; (2) an anonymous informant said that Hauk was still selling drugs out of his house, had guns, and had an associate named Spencer; (3) an unidentified person had parked in the driveway and might have entered the house and (4) Hauk attempted to slam the door on the officers. "Police are predisposed by their instinct for self-preservation to assume that an unknown situation is dangerous. The Fourth Amendment limits officers' ability to act on this assumption, but we must take care not to restrict officers' common-sense precautions, particularly in cases involving reasonable suspicion."

United States v. Dennison, 410 F.3d 1203 (10th Cir. 2005). Officer made valid Terry stop of two individuals in an apartment parking lot at 3:00 a.m. Men said they were waiting for a tow truck on a vehicle that wasn't visible from where they were sitting. Officer reapproached, and one of the men explained he had been in a domestic dispute with his girlfriend and wanted to take the truck before she damaged it. Officer remembered a bulletin about a male being wanted for involvement in a domestic. Passenger had four warrants. Search of vehicle incident to his arrest could not be justified, because the evidence was unclear as to whether he was still at the scene when the search started. However, it was a valid Terry frisk of the car based on the fact the driver was still there, the passenger had been arrested on a felony weapons violation warrant, and the men appeared to be engaged in a common enterprise. Search of truck yielded drugs, paraphernalia, five handguns, three rifles, three shotguns and two machine guns.

United States v. Cantu, ___ F.3d ___ (10th Cir. No. 04-3291, filed 5/9/2005). Officers conducted surveillance on a suspect in an ongoing drug investigation. They saw him pull in to a storage locker, then a female drove away as the subject disappeared into a line of evergreen trees. Shortly thereafter, the female returned in the car and the suspect drug a black, plastic trash bag to the car and put it in the trunk. Officers stopped the car and asked for consent to search. Consent was denied. The officers then detained the vehicle and its occupants for two and one-half hours while they obtained a warrant for the car and a house where the suspect retrieved the trash bag. They served the warrants and found large quantities of marijuana. The circuit held the warrants properly issued based, in part, on the suspect's past drug history, on CI tips, and the officer's observations. The warrants were not based on stale information. Furthermore, officers could have searched the car without a warrant based on the probable cause they already had. http://laws.lp.findlaw.com/10th/04-3291.html

United States v. Santos, 403 F.3d 1120 (10th Cir. 2005). A trooper stopped a car for speeding. The driver was extremely nervous and was vague about his travel plans. The trooper told him to "have a nice trip," and released him, then started asking more questions. Dispatch then notified the trooper the suspect had prior narcotic arrests, and the trooper became suspicious the vehicle contained drugs. The driver consented to search of the trunk but would not open locked suitcases. The trooper called for a narcotics canine that arrived 22 minutes later and alerted to the suitcases where drugs were found. The court held the initial stop was lawful and that the trooper obtained reasonable suspicion during the voluntary encounter, therefore the detention was not illegal. The court held the following factors, viewed in the totality, arose to reasonable suspicion: (1) Defendant appeared more nervous than usual for someone stopped for a traffic violation; (2) Defendant's nervousness increased when asked about his vacation plans and length of stay, and he changed the subject to the weather; (3) Defendant's rental agreement indicated an eight-day rental from California, when he was only as far as Wyoming on the 4th day of the rental and planned to stay several days or a week; (4) Defendant gave vague, evasive and inconsistent answers concerning his length of stay; (5) Defendant was traveling from a known source city (San Francisco) to a known destination city (New York); (6) Defendant knew his mother's address, but not her telephone number; (8) Defendant's sister had a secure job in New York but was moving to California without have a job there; (9) Defendant had a past criminal record for drug offenses and he denied this record and (10) the suitcase in the vehicle had a lock on it. While most of these are weak, in total and based on the deferential standard to law enforcement and the trial court, they amount o reasonable suspicion.

http://laws.lp.findlaw.com/10th/038059.html

United States v. Trujillo,___ F.3d ___ (10th Cir. No. 04-4074, filed 4/12//2005). Search of parolee's home with an parole violator arrest warrant did not violate the Fourth Amendment. The parole agreement required Trujillo to "permit agents of Adult Probation and Parole to search my person, residence, vehicle or any other property under my control, without a warrant, at any time, day or night, upon reasonable suspicion to ensure compliance with the conditions of my parole." After failing one urine test, refusing another and failure to pay restitution and document his attendance at required therapy, the parole board issued a warrant. During a search of his residence, officers found a 9mm handgun, 9mm ammunition, and narcotics paraphernalia. Defendant argued that his arrest terminated the clause in his parole agreement allowing for searches of his residence on reasonable suspicion, and secondly that if the parole agreement remained in effect, there was not reasonable suspicion to support the search of his residence. The Tenth Circuit ruled against him on both counts, stating:

The volatile mixture of drugs and guns is often part of criminal enterprise, and just because the parolee is under arrest does not mean that the contraband ceases to pose a risk of harm to the general public. Accordingly, Mr. Trujillo is incorrect to assert that the government's interests evaporated at the moment of his arrest.


Second, Mr. Trujillo's privacy interest is not "significant." The conditions placed on the liberty of probationers and parolees reduce their privacy rights well below those enjoyed by other citizens. Mr. Trujillo's arrest does not accord him any increased privacy interests; if anything, his arrest further diminishes any right from interference by law enforcement. Thus, a proper weighing of the government's interests in effective supervision and prevention of harm against Mr. Trujillo's privacy interests demonstrates that his arrest has little effect on the calculus. Just as before his arrest, this balance weighs in favor of the government, as the Supreme Court determined in Griffin and Knights.

State v. Duhon, ___ Kan.App.2d ___, ___ P.3d ___ (No. 91958, filed 4/22/2005). Postal inspectors were entitled to remove package from mail stream and subject it to a police dog sniff because it fit the narcotics package profile. The characteristics of this profile are: (1) the size and shape of the package; (2) whether the package is taped to close all openings; (3) handwritten or printed labels; (4) an unusual return name and address; (5) unusual odors coming from the package; (6) a fictitious return address; and (7) the package's destination. In addition, postal inspectors pay special attention to the package's city of origin and to the recipient's name. See United States v. Cantrall, 762 F. Supp. 875, 879 (D. Kan. 1991).

United States v. Williams, ___ F.3d ___ (10th Cir. No. 04-7065, filed 4/19/2005). Denial of defendant's motion to suppress evidence is affirmed where the search and detention of defendant were justified due to an objectively reasonable suspicion of illegal activity. An Oklahoma trooper stopped defendant for speeding and no seat belt. He and the other three occupants in the car had inconsistent stories about travel plans. Defendant was "extremely nervous," his hands were shaking, his voice was cracking, he could not sit still and his heart was beating so fast the trooper was able to see the defendant's "chest jerk." The defendant admitted he left the interstate in an effort to avoid a traffic stop. The trooper returned defendant's documents, told him he was free to leave, then asked some additional questions and sought consent for a dog sniff of the exterior. Defendant refused, but the trooper did it anyway. The dog alerted, and the trooper found drugs and a weapon in the car. The court held that continued detention was reasonably related in scope to the circumstances justifying the stop. The court will not view each factor supporting reasonable suspicion in isolation, but will view the totality of the circumstances. The fact that the defendant offered explanation for the suspicious circumstances is immaterial. A law enforcement officer can rely on his training and experience without inquiring about innocent explanations from a suspect. To read the full text of this opinion, go to: http://laws.lp.findlaw.com/10th/047065.html

Case Name Unknown. Profiled in American Police Beat, p. 17 (March 2005). U.S. District Judge David N. Hurd held in a federal case in Utica New York that police do not need a search warrant to attach a GPS tracking device to a car driven by a suspected Hell's Angel member who was suspected of drug trafficking. Judge Hurd held the suspect had no expectation of privacy in the whereabouts of his vehicle on a public roadway, therefore there was not Fourth Amendment search.

Muehler v. Mena, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 03-1423, 3/22/2005). Detaining the plaintiff in handcuffs for 2-3 hours while police served a search warrant at her residence did not violate the Fourth Amendment. Police had a warrant to search the house for weapons and knew at least one gang member resided there. They also suspected the individual was armed and dangerous based on his recent involvement in a drive-by shooting. Additionally, questioning the plaintiff about her immigration status during her detention did not violate the Fourth Amendment.

United States v. Musa, ___ F.3d ___ (10th Cir. No. 03-3343, filed 3/21/2005). In a 2-1 decision, the Circuit held the district court erred in suppressing evidence resulting from a no-knock entry. Officer Voigt testified defendant was suspected of selling methamphetamine only two months after he had been released from prison. He usually left the drugs in his vehicle glove box because he was on federal parole and did not want his parole officer to find it in his house. Defendant had a felony theft conviction, and prior conviction for marijuana. He also had arrests for domestic battery, obstruction, criminal threat and various other drug charges. Although officers had no specific information he was armed, he had a past arrest for felon in possession of a firearm. Voigt also testified the lack of intelligence about the residence created a potential for dangerousness. The Circuit held there was sufficient concern of potential violence or disappearance of evidence to justify a no-knock entry.

State v. Kermoade, 33 Kan.App.2d 573, 105 P.3d 730, review denied ___ Kan. ___ (2005). The state has the burden to prove that entry was voluntary on a knock & talk. When officers are initially denied entry, ask the resident to step outside and talk to them, then enter without consent and order those within to come to the door and talk to them, the transaction constitutes a seizure, not a voluntary encounter, and a subsequent consent is tainted by the illegal entry. Here, officers received a tip from an unreliable informant that three people were growing marijuana in a house across the street. Officers did not get consent to search until after a 30-minute conversation in which they told the residents the residence would be secured while officers sought a warrant. The district court held that the consent was coerced ("extracted like a dentist pulls a bad tooth,"), and that all the evidence from the grow operation should be suppressed. The Court of Appeals affirmed, finding the seizure began when officers asked the resident to step out on the porch and talk to them. As the trial judge said, the whole thing "degenerates from a 'knock and talk' to a 'knock and twist the arm out of the socket' because they wouldn't take no for an answer."

Illinois v. Caballes, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 03-923, filed 1/24/05). Police need not have a reasonable suspicion of wrongdoing before using a drug-detecting dog when a motorist has been pulled over for a traffic violation. Defendant was stopped for speeding. Another trooper heard the stop on the radio and responded with his canine. The primary officer asked Caballes for consent to a search of the car, but he refused. Caballes told the officer he had never been arrested, but the dispatcher later told the trooper Caballes had two prior arrests for distributing marijuana. The canine officer arrived and began walking around the car with the dog. The dog acted as if the trunk contained drugs. The primary Trooper searched the trunk and found marijuana. The Illinois Supreme Court ruled the Constitution required reasonable suspicion before allowing a canine sniff and that use of the dog was an unjustified expansion of the traffic stop. The United States Supreme Court reversed, holding that a dog sniff conducted during a concededly lawful traffic stop that reveals no information other than the location of a substance that no individual has any right to possess does not violate the Fourth Amendment.

Sentencing

United States v. Booker, 125 U.S. 738, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 04-104, filed 1/12/2005). The Federal Sentencing Guidelines limit the severity of the sentence that a judge can lawfully impose on a defendant to the facts found by the jury at trial.

Use of Force

Harris v. Coweta County, ___ F.3d ___, 2005 WL 901889 (11th Cir. 4/20/05). High speed ramming of a fleeing speeder was held to be deadly and excessive force for which the pursuing officer is not entitled to qualified immunity. The chase began when the suspect refused to stop after being seen speeding 73 mph in a 55 mph zone. A supervisor authorized a "PIT" but the suspect was going too fast. Instead, the pursuing officer rammed the suspect, causing him to lose control, leave the roadway, head down an embankment and crash, rending the suspect a quadriplegic.

Marquez v. City of Albuquerque, ___ F.3d ___ (10th Cir. No. 02-2294, filed 2/25/2005). Police officers use of a canine to stop a suspected armed robber that had just led police on a reckless high-speed chase and tried to flee from her crashed vehicle was not excessive. Also, the district court did not abuse its discretion in refusing to allow the testimony of plaintiff's expert, who would have testified that the minimum amount of force was the only lawful force and that the officer violated department policy. His testimony was only "tangentially related" because, even if believed, the jury could still hold the officer acted reasonably.


















2004 Case Update List


ADA

Mason v. Avaya Communications, Inc., 357 F.3d 1114 (10th Cir. 2004). Defendant, a service coordinator, was not entitled to work at home to accommodate her PTSD. Employer's need for presence in the workplace, supervision and teamwork are essential job functions, despite their absence from the job description. "As commonsense suggests, Avaya probably did not even consider informing its employees that they were actually required to show up at the workplace and work with co-employees under supervision when it drafted the service coordinator job description that is a given."

Arrest

Devenpeck v. Alford, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 03-710, filed 12/13/2004). A motorist broke down on the side of the road in Washington. The suspect pulled over to help him, activating his wig-wag headlights. A Washington Trooper approached from the opposite direction and turned around to assist. As the Trooper pulled up, the suspect left. The Trooper asked if the suspect was a cop. The motorist said he "got that impression." Washington Troopers pulled the suspect over. He had a police scanner in his car and was listening to it. He also had handcuffs in his car, and told the Troopers he had previously worked for the "state patrol," but later said he worked in law enforcement in Texas and at a shipyard. He claimed the wig wags were part of his car alarm system and that he did not know how to activate them, although avoiding touching a button near his knee on the dashboard. The Troopers noted a tape recorder on the passenger seat. Suspect insisted that his taping of roadside encounters with police was lawful, and he had case law in the glove box to prove it. The Troopers arrested suspect for impersonating an officer, violation of a Washington state prohibiting the taping of conversations without consent, making a false representation to an officer and violation of a statute prohibiting flashing headlights, although they only informed the suspect of the privacy act charge. Suspect sued the Troopers for false arrest. The jury found for the officers. The Ninth Circuit reversed, holding there was no probable cause for the arrest. The Ninth Circuit said the offense establishing probable cause must be "closely related" to the offense identified by the arresting officer. The Supreme Court reversed the Ninth Circuit, stating the "closely related" rule improperly focuses on the officer's subjective intent, rather than an objective review of the facts. (See Whren v. United States, 517 U.S. 806 (1996)(pretextual stops are legal if based on reasonable suspicion, despite officer's motives)). Such a rule would mean that the Constitutionality of the arrest would vary from place to place and time to time, and an arrest by a knowledgeable. veteran officer would be valid while that of a rookie in precisely the same circumstances would not. The Fourth Amendment holds an arrest to be lawful if it was "reasonable" given all the facts at the time. Thus, even though officers were wrong about the tape-recording charge, the suspicious circumstances in which the suspect appeared to be impersonating an officer could justify the arrest. The case was remanded so the Ninth Circuit could consider whether there was probable cause to arrest for obstruction or impersonating an officer, since they found those offenses legally irrelevant the first time.

City of Overland Park v. Zabel, 32 Kan.App.2d 1136, 95 P.3d 124, rev. denied 278 Kan. 843 (2004). Officer Black saw defendant speeding in Overland Park. By the time he got the defendant stopped, he was in Merriam. Defendant was DUI. He was returned to Overland Park for testing, and blew a 0.220 He was convicted of speeding and DUI. The district court ruled that a refusing a PBT charge occurred solely in Merriam and dismissed that charge. Zabel claimed the arrest was illegal because the officer was outside his jurisdiction. The Court of Appeals disagreed and held the officer was in fresh pursuit within the meaning of K.S.A. 2003 Supp. 22-2401a (2) and (7)(c).

http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2004/20040813/91030.htm

Hiibel v. Sixth Judicial District Court of the State of Nevada, 542 U.S. 177, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 03-5554, filed 6/21/2004). The Supreme Court held that people do not have a constitutional right to refuse to tell police their names if there is reasonable suspicion to suspect they are involved in criminal activity. A Nevada deputy was dispatched to a possible fight call. The caller told the dispatcher he saw a man assaulting a woman in a red and silver GMC truck on a certain road. The deputy arrived, and found the truck parked on the side of the road with skid marks in the gravel behind the vehicle, indicating it came to a sudden stop. The deputy saw a man (Hiibel) standing outside the truck, and a woman (Hiibel's daughter) inside the truck. The deputy explained he was investigating a fight, and asked Hiibel for "identification" (note - the court deals with identification - not a driver's license). Hiibel refused to produce any, despite 11 requests by the deputy. Hiibel was convicted of resisting arrest based on his silence and fined $250. He argued the identification requirement violated his Fourth and Fifth Amendment rights. The United States Supreme Court, in a 5-4 decision, disagreed. It reasoned that obtaining a suspect's name as part of a Terry stop is an important governmental interest - allowing the officer to determine if the suspect is wanted or has a record of violence or mental disorder - particularly important when investigating domestic assault cases. It noted that knowing the person's identity may even clear the suspect. As long as the stop is justified at its inception, and the demand for identification is reasonably related in scope to the circumstances justifying the stop, it will be valid under the Fourth Amendment. The deputy's request did not violate the Fifth Amendment either, because Hiibel's name presented no reasonable danger of incrimination. The Court left open the question of whether it would violate a person's Fifth Amendment right to compel them to identify themselves if doing so will give the police a link in the chain of evidence needed to convict the person, in other words, if disclosing identity actually is incriminating under the circumstances.

United States v. Johnson, ___ F.3d ___ (10th Cir. No. No. 03-2153, filed 4/15/2004). Officer had a reasonable suspicion that defendant might be involved in one or more criminal activities, including drug dealing, kidnaping, or prostitution. Taking steps minimally necessary to ensure the suspect was not armed was permissible under Terry. Order suppressing evidence is reversed. Caller told dispatcher it appeared that a black male was forcing a white female to walk down street in a high-crime area. Officer stopped them, asked defendant to put down his walkie-talkie, produce ID, and then said he was going to pat him down. Defendant volunteered that he had a gun. The court held the tip was not "anonymous" because the caller gave his cell phone number, stayed on the line 8 minutes, and gave a detailed description of what was occurring. Encounter was mostly voluntary, but there was reasonable suspicion based on the totality of circumstances to support the seizure. To read the full text of this opinion, go to: http://laws.lp.findlaw.com/10th/032153.html

State v. Abbott, 277 Kan. 161, 166, 83 P.3d 794 (2004). Officer had probable cause to stop and arrest occupant of van for drug possession. A CI informed the officer the defendant would be in a two-tone van going from Hutchinson to Haven to purchase methamphetamine from "Greg." The Officer parked near Greg's house. The CI called and said Defendant would be late. The officer waited. A two-tone van arrived and stayed for about 30 minutes. The officer stopped the van and asked the occupants for ID. The officer checked for warrants, then had the occupants exit the van. He searched it, and found a glass pipe, a set of scales, a pouch with ziplock baggies, a razor blade and two business cards folded into a funnel in the rear pockets of the two front seats. The officer arrested Abbott, who was in the back seat, and who also had meth in his underwear. Both searches were valid incident to arrest, based on the CI's prior reliability, accurate description of the Defendant's activities, and corroboration by the officer.

Hodgkins v. Peterson, ___ F.3d ___ (7th Cir. No. 01-4115, filed 1/22//2004). Once a police officer discovers sufficient facts to establish probable cause, she has no constitutional obligation to conduct further investigation to discover exculpatory evidence or investigate an affirmative defense; however, the officer may not ignore conclusively established evidence of the existence of an affirmative defense.

State v. Ramirez, ___ Kan.App.2d ___, ___ P.2d ___ (unpublished decision filed 1/9/2004). A deputy walked into a bar known for drug activity. He saw Ramirez, who he had known for eight years and seen high before. She was fidgety and nervous, and avoided eye contact. Her eyes were glassy, watery and wide open. She moved away from him. He approached, and saw a plastic baggie with a torn edge in her left hand. He asked her what was in her hand several times, and she failed to respond. He grabbed her wrist and told her to open her hand. She did, and the deputy found cocaine. Ramirez alleged that the deputy had no probable cause to arrest her, therefore, this was an invalid search incident to arrest. The Court of Appeals, one judge dissenting, affirmed the trial court's decision this was a valid search incident to arrest based on United States v. Arvizu, 534 U.S. 266 (2002).

Breath Tests

State v. Herrman, ___ Kan.App.2d ___, ___ P.3d ___ (No.90,760 , 5/21/2004). Deficient breath sample cannot be admitted as "other competent evidence" in the prosecution of a DUI case. Since only certain "other competent evidence" is listed in K.S.A. 8-1013(f)(1), other items are excluded. NOTE: Decision has no effect in the City of Topeka. See definition of "other competent evidence" in § 142-152(a)(2) as amended by Ord. No. 18158, effective 1/21/2004.

Pieren-Abbott v. Kansas Department of Revenue, ___ Kan.App.2d ___, ___ P.2d ___ (No. 90165, filed 5/7/2004). Service of a summons is not required to initiate judicial review of a driver's license suspension proceeding, despite the language in K.S.A. 8-1020(o).

Civil & Criminal Liability

Marcus v. McCollum, 394 F.3d 318 (10th Cir. 2004). Officers are not state actors for the purpose of a § 1983 when they merely stand by at a private repossession to prevent a breach of the peace, but they cross the line if they affirmatively intervene to aid the repossessor, or make legal determinations based on paperwork presented at the scene. Arrival with the repossessor may have the effect of intimidating the debtor into not exercising their rights to resist, and may be enough to trigger state action. Repossessors can only use self-help if no breach of the peace occurs. A debtor's request for the repossessor to leave the car alone must be obeyed, and failure to do so constitutes a breach of the peace and an illegal repossession. Disagreeing parties should be referred to the judicial process. Plaintiffs' allegation in this case that the officers threatened to arrest them if they did not go back into the house was sufficient to deny the officers qualified immunity. A well-reasoned dissent by Judge Brorby concludes that the officers' actions were objectively reasonable for the purpose of keeping the peace and that qualified immunity should protect them.

Brosseau v. Haugen, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 03-1261, filed 12/13/2004)(per curium). Officer shot a person wanted an a felony, no-bail warrant after a short foot chase and the felon jumped into a vehicle and fled the area. At the moment he started the vehicle and tried to move it, the officer believed the felon was a threat to "other officers on foot who [she] believed were in the immediate area, [and] for the occupied vehicles in [Haugen's] path and for any other citizens who might be in the area." The felon pled guilty to felony eluding. He sued the officer for excessive force. Applying Saucier v. Katz, 533 U.S. 201, the Ninth Circuit held the officer was not entitled to qualified immunity because her force was clearly excessive and she should have known that based on "fair warning" in the general tests set forth in Graham v. Conner, 490 U.S. 386 and Tennessee v. Garner, 471 U.S. 1. The Supreme Court summarily reversed, finding the law on shooting someone using a car as a deadly weapon is not clearly established, each case turns on its own unique facts, and the defendant's actions fell in the "hazy border between excessive and acceptable force."

Jiron v. City of Lakewood, 392 F.3d 410 (10th Cir. 2004). In a § 1983 action against a police officer for excessive use of deadly force, collateral estoppel prevents the plaintiff from relitigating elements of a crime for which she has pled guilty. In this case, an officer was dispatched to a disturbance involving two drunk females. While en route, dispatch reported they were suspected of stealing a purse. While handcuffing Jiron, she ran into an apartment and the officer followed. The suspect grabbed a knife and headed to a bedroom and began cutting the screen in an attempt to escape. After the officer retreated three times, the suspect approached her with a knife "hacking at the air." The officer shot the suspect. The suspect pled guilty to felony menacing for knowingly placing a police officer in fear of imminent bodily injury by use of a knife. The suspect changed her story in the civil action and said she only threatened herself with the knife. The court would not let her relitigate the issue. The court also concluded that the officer did not recklessly and deliberately create the need to use deadly force. Summary judgment for defendants is affirmed.

Roe v. Kansas Dept. of Social and Rehabilitation Services, 278 Kan. 584, 102 P.3d 396 (Kan. 2004). SRS's agreement to monitor family services provided by BIA did not create a duty to the baby, who was later abused by its parents. The duty undertaken by SRS was part of its public, statutory duty under K.S.A. 38-1524 to investigate alleged child abuse. There was no duty undertaken sufficient to find liability under Restatement Second, Torts § 234A.

Jennings v. City of Stillwater, ___ F.3d ___ (10th Cir. No. 03-6206, filed 9/15/2004). The United States Constitution does not provide a cause of action for victims of crime when state or local law enforcement officials fail to perform a proper investigation.

Smith v. Wampler, ___ F.3d ___ (unpublished, 10th Cir. No. 01-1455/01-1481, filed 8/5/2004). Mere threats by a law enforcement officer to use excessive force sufficiently states an unreasonable seizure claim sufficient to withstand summary judgement. Officer allegedly threatened to hit Smith with his gun while Smith was laying on the floor, handcuffed and making no effort to resist. Officer also allegedly told Smith, "Nigger, if you don't tell me where your dope is or where you're getting it from, Ill see that they file the habitual criminal act on you." He also allegedly called Smith a "smart ass nigger" and said he would have his ISP officer send his ass back to prison. No actual physical injury is necessary to state a constitutional claim. However, Officer is entitled to qualified immunity because the right to be free from non-deadly threat of physical harm was not clearly established in 1994.

McCormick v. City of Lawrence, ___ F.Supp. ___, 2004 WL 1427026, (D. Kan. No. 03-2195-GTV, 2004). Defendant police officers were entitled to qualified immunity in their arrest of plaintiff Dale McCormick. McCormick was not exercising his First Amendment rights while calling police names such as fuckers, motherfuckers, fuckheads, fucking pigs, fat ass, chubby, dumb ass, and continually shouted fuck the police. He also interfered with investigations and traffic stops by his protests, and by doing so, was properly arrested for interference or obstruction.

Dexter v. Ford Motor Company, ___ F.3d ___ (10th Cir. No. 02-4122, filed 02/12/2004). Failure to seatbelt an inmate in violation of prison policy does not state an Eighth Amendment claim. Corrections officers at the Utah State Prison failed to seatbelt Dexter before transporting him (although some inmates requested it). The guard that was driving the van was speeding and ran off the road, rolling the van. Dexter was ejected and rendered a quadriplegic. He sued, claiming that failing to seatbelt him constituted cruel & unusual punishment. The 10th Circuit rejected that claim, finding the complaint alleged a case of negligence, at most.

Deputy charged in fatal accident (Capitol-Journal Feb. 14th 2004 Story in Local and State Sec.)

State v. Paden, Barton County District Court. A deputy sheriff has been removed from patrol duty after he was charged with vehicular homicide in a crash that left a motorcyclist dead. David Paden, an 11-year veteran with the Barton County Sheriff's Department, has been involved in three other accidents during the past two years during chases. Attorney General Phill Kline filed the misdemeanor count on Wednesday against Paden. He was reassigned later in the day, just hours after Sheriff Buck Causey said publicly that he intended to leave Paden on the road. Causey said Thursday that he was unsure about Paden's new assignment. "He's been assigned to some nonpatrol duties, and I'm not certain what that's going to be," the sheriff said. "It'll just be off the road until this case is disposed." Brian Frenzl, 40, of Great Bend, died Sept. 1 when his motorcycle struck the front end of Paden's patrol car on US-281 highway as Paden was joining pursuit of another vehicle. According to Kansas Highway Patrol reports, Paden was making a U-turn at the time of the accident. In addition to vehicular homicide, Paden is charged with making an unlawful U-turn and operating a vehicle with unlawful tinting. An investigation in September conducted by the highway patrol found that windows in Paden's patrol car were illegally tinted and improperly retrofitted to accommodate a police dog that he transported. Paden also was involved in a January 2002 chase that killed 16-year-old Adam Mayers, of Albert, the Barton County Sheriff's Department said. The teen died when his truck hit a telephone pole. Two other people were hurt in later chase-related accidents.

DUI

Nickelson v. Kansas Department of Revenue, 33 Kan.App.2d 359, 367, 102 P.3d 490 (2004). Trooper saw a car pull off the highway in the "middle of nowhere," and turn out its headlights on a cold night. The trooper pulled up beside the vehicle, turned on his spotlight, and approached the occupied vehicle to find out whether the driver was ok. When the driver rolled down his window, the Trooper smelled a strong odor of alcohol coming from the vehicle. The Trooper had the driver perform SFST's, then take a breath test with a result of 0.147. Nickelson challenged his DL suspension, saying the officer had no legal grounds to approach the vehicle. The Court of Appeals upheld the suspension, holding this was a valid safety stop, State v. Vistuba, 251 Kan. 821, and once the Trooper smelled the odor of alcohol he had sufficient reasonable suspicion to further detain the driver. Distinguishes City of Hutchinson v. Davenport, 30 Kan.App.2d 1097 on the basis that odor was used in Davenport as the basis for the stop, not continued detention.

City of Dodge City v. Wipf, ___ Kan.App.2d ___, ___ P.3d ___ (No. 91668, filed 7/30/2004), motion to publish granted 10/15/2004). A DUI suspect can rescind their initial refusal to take a chemical based on the factors in Standish v. Kansas Department of Revenue, 235 Kan. 900, 683 P.2d 1276 (1984). The subsequent consent must be made (1) within a very short and reasonable time after the prior first refusal; (2) when a test administered upon the subsequent consent would still be accurate; (3) when testing equipment is still readily available; (4) when honoring the request will result in no substantial inconvenience or expense to the police; and (5) when the individual requesting the test has been in the custody of the arresting officer and under observation for the whole time since arrest. In this case, the suspect was arrested and transported to the police station. On the way into the room, the suspect refused all testing. While waiting to be booked into jail, the suspect was read the ICA and said "I want to call my lawyer." The officer said the suspect could do so after testing. When the officer finished reading the ICA, the suspect again refused a breath test, but said he would take a blood test. The officer treated it as a refusal case and transported the suspect to the hospital where his blood was drawn. While en route back to the jail, the suspect again asked to call his lawyer. The officer said jailers would let him use the phone at the jail. They didn't. The Court of Appeals held that since the City intended to use the blood test results against the suspect, the suspect had the right to an attorney under K.S.A. 8-1001(f)(I), and failure to give the suspect the right to consult with an attorney required suppression of the blood test results.

State v. Sedillos, ___ Kan.App.2d ___, ___ P.3d ___ (No. 91,498, 10/8/2004). Because the enhancement sentencing provisions of K.S.A. 2002 Supp. 8-1567 do not apply to an offender's actions occurring before their effective date and do not alter the sentence imposed in earlier convictions, the provisions of K.S.A. 2002 Supp. 8-1567 were not invalid as an ex post facto law. When sentencing a defendant for a driving under the influence (DUI) offense under K.S.A. 2002 Supp. 8-1567(l)(3), any DUI convictions occurring during a person's lifetime shall be taken into account. "Moreover, although Sedillos entered into his diversion agreement and plea agreement when K.S.A. 8-1567 indicated that only convictions occurring in the previous 5 years could be used to enhance the sentence for a current DUI offense, there is no indication that he relied on this provision when entering into those agreements. See K.S.A. 2000 Supp. 8-1567(k)(3). Indeed, such reliance would be illogical because the legislature could choose at any time to alter the manner in which it punishes an offense occurring after the amendment date. Because the 2001 amendment to the enhanced sentencing provisions of 8-1567 only punishes conduct which occurs subsequent to the amendment date and does not alter the sentence imposed in Sedillos' prior convictions, we find that his argument fails. See K.S.A. 8-1567(l)(3). "

State v. Herrman, ___ Kan.App.2d ___, ___ P.3d ___ (No.90,760 , 5/21/2004). Deficient breath sample cannot be admitted as "other competent evidence" in the prosecution of a DUI case. Since only certain "other competent evidence" is listed in K.S.A. 8-1013(f)(1), other items are excluded. NOTE: Decision has no effect in the City of Topeka. See definition of "other competent evidence" in § 142-152(a)(2) as amended by Ord. No. 18158, effective 1/21/2004.

Mitchell v. Kansas Department of Revenue, ___ Kan.App.2d ___, ___ P.2d ___ (No. 89873, filed 1/9/2004). Trooper did not unreasonably interfere with Mitchell's opportunity to take an independent blood test. Trooper transported Mitchell to hospital, but hospital would not perform test unless it could bill the Highway Patrol. Trooper tried to talk them into testing Mitchell at Mitchell's expense for 30 minutes, to no avail. After leaving hospital, Mitchell never asked to go to another facility.

Drugs

Gonzales v. O Centro Espirita Benificiente Uniao Do Vegetal, 389 F.3d 973 (10th Cir. 2004), cert. granted ___ U.S. ___ (04-1084, 4/18/05). The government cannot block importation from Brazil of the hallucinogenic drug DMT, which is listed as a controlled substance, because, as applied to a small religious group whose members import it for use as a ceremonial sacrament.

Employment

Huemiller v. Ogden Civil Service Commission, 2004 WL 2403768 (UtahApp. 2004). Court upheld automatic termination policy for officers who have been dishonest, even where the officer had a lengthy unblemished career. This officer directed a disabled motorist to a towing company in which he had an interest and then lied about the matter in an internal affairs investigation.

Roe v. City of San Diego, 543 U.S. 77, 125 S.Ct. 521, 160 L.Ed.3d 410 (2004). The Supreme Court ruled that San Diego officials were right to fire a policeman who sold sexually explicit videotapes of himself in uniform. The videos showed Roe removing his police uniform and then masturbating. "The speech in question was detrimental to the mission and functions of the employer," justices said in the ruling, noting that Roe "took deliberate steps to link his videos and other wares to his police work, all in a way injurious to his employer." Roe was fired in June 2001 after his supervisor discovered the sex videos were being sold on eBay. Roe's supervisor charged him with violating department policies on unbecoming conduct and ordered him to stop selling the tapes. Roe did, but was fired for disobeying orders after police officials found that his Internet profile on eBay still included references to the videos. Roe sued, claiming his activity was a "public concern" because the sex videos were made while he was off-duty and away from the workplace, were marketed to a public audience and said nothing about his employment. The 9th Circuit had ruled in favor of the officer.

Pennsylvania State Police v. Suders, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 03-95, filed 6/14/2004). To establish "constructive discharge," plaintiff must prove a work environment so hostile as to merit resignation as a fitting response. Defendants may assert affirmative defenses in a case alleging constructive discharge, unless plaintiff quit in response to an official change in her employment status. http://laws.lp.findlaw.com/us/000/0395.html

Montgomery v. City of Ardmore, Oklahoma, 365 F.3d 926 (10th Cir. 2004). Officer Montgomery got crosswise with FOP and management over the Chief's alleged cover-up of an officer's alcohol-related accident and claims he was "ostracized" by fellow officers. He took stress leave and was eventually terminated. Officer sued alleging violations of his constitutional rights under 42 U.S.C. § 1983, conspiracy to violate his constitutional rights, and state law tort claims for negligence, breach of contract, intentional infliction of emotional distress, and defamation. The district court granted all defendants summary judgment. The Tenth Circuit reversed, finding the city failed to provide an adequate pretermination notice and hearing pursuant to Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985). It affirmed summary judgment on all other grounds. http://www.kscourts.org/ca10/cases/2004/04/01-7154.htm

Jones v. Kansas State University, 279 Kan. 128, 106 P.3d 10 (Kan. 2005). Court of Appeals, one judge dissenting, reverses termination of a University Police Officer finding he did not commit gross misconduct or conduct grossly unbecoming a state employee. Officer stopped a car for speeding. The car stopped six feet away from the curb on marked parking stalls. The driver had a suspended license. The officer cited her, but then turned off his video camera in violation of department policy and told her "wait two minutes until we leave, then you can drive home," or words to that effect. He also filed a report stating her vehicle was "legally parked," when it was not. The Court of Appeals held that while the officer engaged in misconduct, it did not meet the relevant standard for termination. Ordinary misconduct is to be distinguished from gross misconduct, and to be gross misconduct, it must be "aggravated, extreme, or wanton in nature, evincing a knowing and reckless disregard for the rules, polices or other standards of appropriate behavior." Reversed by Kansas Supreme Court 02/18/2005.

Evidence

Banks v. Dretke, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 02-8286, filed 02/24/2004). When police or prosecutors conceal significant exculpatory or impeaching material in the State's possession, e.g., by withholding evidence that would have allowed a defendant to discredit essential prosecution witnesses, it is ordinarily incumbent on the State to set the record straight. The Fifth Circuit erred in dismissing death row inmate's Brady claim with respect to one such witness, and in denying him a certificate of appealability with respect to another.

Illinois v. Fisher, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 03-374, filed 2/23/2004)(per curium). Chicago police arrested defendant for cocaine possession in September 1988. Shortly afterwards, defendant filed a motion for discovery requesting all physical evidence the State intended to use at trial. The State responded that all evidence would be made available at a reasonable time and date upon request. Defendant failed to appear in court, and the warrant was served over 10 years later, in November 1999. Meanwhile, in September 1999, the police, acting in accord with established procedures, had destroyed the substance seized from defendant during his arrest. Defendant's motion to dismiss for failure to preserve the evidence was overruled, and defendant was convicted. The Illinois appellate court held the Fourteenth Amendment's Due Process Clause required the dismissal of criminal charges because the police destroyed evidence. They were wrong. The United States Supreme Court reversed, noting that when the State suppresses or fails to disclose material exculpatory evidence, the good or bad faith of the prosecution is irrelevant: a due process violation occurs whenever such evidence is withheld. See Brady v. Maryland, 373 U. S. 83 (1963); United States v. Agurs, 427 U. S. 97 (1976). In Arizona v. Youngblood, 488 U. S. 51 (1988). by contrast, the court recognized that the Due Process Clause "requires a different result when we deal with the failure of the State to preserve evidentiary material of which no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant." 488 U. S., at 57. The court stated that the failure to preserve this "potentially useful evidence" does not violate due process "unless a criminal defendant can show bad faith on the part of the police."

Firearms

United States v. Jones, ___ F.3d. ___ (10th Cir. No. 03-3377, filed 12/8/2004). Defendant's conviction for felon in possession of ammunition in violation of 18 U.S.C. § 922(g) is affirmed. Defendant was convicted of aggravated assault on a law enforcement officer on 12/7/1992. He claimed that since he received probation, and K.S.A. 21-4603(g) says that "[d]ispositions which do not involve commitment to the custody of the secretary of corrections . . . shall not entail the loss by the defendant of any civil rights, his civil rights have been "restored" within the meaning of 18 U.S.C. 921(a)(20). "Nonetheless, the restoration-of-civil-rights provision of § 921(a)(20) does not apply unless the restored civil rights include the right to possess a firearm. See United States v. Maines, 20 F.3d 1102, 1104 (10th Cir. 1994). And Kan. Stat. Ann. § 21-4204, which specifically addresses the right of convicts to possess firearms, has denied that right to Defendant. As the district court recognized, a specific statute denying the right to possess a gun "requires the conviction to be counted under §921(a)(20)" in spite of a general provision saying that no civil rights are forfeited."

FLSA

Nickell v. City of Lawrence, Kansas, ___ F.Supp. ___ (D.Kan. No. 03-4070-KGS, filed 12/23/2004). Lawrence police sergeants are executive, administrative or professionals and are thus exempt from overtime pursuant to 29 U.S.C. § 213(a)(1). Their department has no captains and the chain of command goes directly from the sergeants, to lieutenants to the chief. Lawrence sergeants have relatively more responsibility than sergeants in departments with more levels of administration.

Johnson v. The Unified Government of Wyandotte County, Kansas, ___ F.3d ___ (10th Cir. No. 01-3398, 02-3005 and 02-3014, filed 6/7//2004). There was sufficient evidence to support the jury's verdict that defendant police officers were independent contractors while working off-duty as security guards for the Housing Authority of Kansas City and thus not entitled to overtime. The housing authority exercised very little control over the officers, and the officers could come and go as they pleased. (Bukaty)

Interrogation

United States v. Rogers, ___ F.3d ___ (10th Cir. No. 04-4048, filed 12/17//2004). Officers went to a home on a domestic standby while a significant other removed items and to serve an ex parte protective order. The resident, who had been convicted of domestic battery in the past, in response to officer's questions told police there were guns in the residence, and showed officers where they were. The officers secured the weapons in a locked room while the significant other moved out her stuff. The officers returned the key to the resident and left. They then informed the ATF the resident had guns. ATF obtained a warrant and seized the guns. The district court held that the guns and statements should be suppressed because of a Miranda violation. The Tenth Circuit reversed, holding the defendant was not in custody when he answered the officer's questions.

Yarborough v. Alvarado, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 02-1684, filed 6/1/2004). Alvarado helped Paul Soto try to steal a truck, leading to the death of the truck’s owner. Alvarado was called in for an interview with Los Angeles detective Comstock. Alvarado was 17 years old at the time, and his parents brought him to the station and waited in the lobby during the interview. Comstock took Alvarado to a small room where only the two of them were present. The interview lasted about two hours, and Alvarado was not given a warning under Miranda v. Arizona, 334 U.S. 436. Although he at first denied being present at the shooting, Alvarado slowly began to change his story, finally admitting that he had helped Soto try to steal the victim’s truck and to hide the gun after the murder. Comstock twice asked Alvarado if he needed a break and, when the interview was over, returned him to his parents, who drove him home. The state courts concluded that Alvarado was not in custody during the interrogation and therefore was not entitled to warnings. The Ninth Circuit reversed. The Ninth Circuit held the state court failed to account for Alvarado’s youth and inexperience when evaluating whether a reasonable person in his position would have felt free to leave the interview. The United States Supreme Court reversed the Ninth circuit, holding the state court considered the proper factors and reached a reasonable conclusion that Alvarado was not in custody for Miranda purposes during his police interview.

United States v. Patane, 542 U.S. 630, 124 S.Ct. 2620, 159 L.Ed.3d 667 (2004). Police investigating the violation of a restraining order started to read Patane his rights under Miranda v. Arizona, 384 U.S. 436, but Patane cut them off saying he knew his rights. Police then asked Patane if he owned any guns. Told yes, police looked for and found an illegal pistol (Patane was a convicted felon). The Tenth Circuit ruled that the pistol was fruit of the poisonous tree and could not be used against Patane at trial. The United States Supreme Court, in a 5-4 decision, reversed. The plurality concluded that a failure to give a suspect Miranda warnings does not require suppression of the physical fruits of the suspect's unwarned but voluntary statements. The Fifth Amendment prohibits compelling a criminal defendant to testify against himself at trial. It cannot be violated by the introduction of nontestimonial evidence obtained as a result of voluntary statements. Thus, uncompelled statements taken without Miranda warnings can be used to impeach a defendant's testimony at trial, see Oregon v. Elstad, 470 U.S. 298 at 307-308, though the fruits of actually compelled testimony cannot, see New Jersey v. Portash, 440 U.S. 450, 458-459. Unlike actual violations of the Self-Incrimination Clause, there is, with respect to mere failures to warn, nothing to deter and therefore no reason to apply Wong Sun's "fruit of the poisonous tree" doctrine. It is not for this Court to impose its preferred police practices on either federal or state officials. Because police cannot violate the Clause by taking unwarned though voluntary statements, an exclusionary rule cannot be justified by reference to a deterrence effect on law enforcement, as the court below believed.

Missouri v. Siebert, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 02-1371, filed 1/28/2004). Respondent Seibert feared charges of neglect when her son, afflicted with cerebral palsy, died in his sleep. She was present when two of her sons and their friends discussed burning her family's mobile home to conceal the circumstances of her son's death. Donald, an unrelated mentally ill 18-year-old living with the family, was left to die in the fire, in order to avoid the appearance that Seibert's son had been unattended. Five days later, the police arrested Seibert, but did not read her her rights under Miranda v. Arizona, 384 U.S. 436. At the police station, Officer Hanrahan questioned her for 30 to 40 minutes, obtaining a confession that the plan was for Donald to die in the fire. He then gave her a 20-minute break, returned to give her Miranda warnings, and obtained a signed waiver. Hanrahan testified that he made a conscious decision to withhold Miranda warnings, question first, then give the warnings, and then repeat the question until he got the answer previously given. He resumed questioning, confronting Seibert with her prewarning statements and getting her to repeat the information. Seibert moved to suppress both her prewarning and postwarning statements. The District Court suppressed the prewarning statement but admitted the postwarning one, and Seibert was convicted of second-degree murder. The United States Supreme Court, in a 5-4 decision, held that both confessions should be suppressed. The plurality concluded that because the midstream recitation of warnings after interrogation and unwarned confession in this case could not comply with Miranda's constitutional warning requirement, Seibert's postwarning statements are inadmissible. Failure to give Miranda warnings and obtain a waiver of rights before custodial questioning generally requires exclusion of any statements obtained. Conversely, giving the warnings and getting a waiver generally produces a virtual ticket of admissibility, with most litigation over voluntariness ending with valid waiver finding. By any objective measure, it is likely that warnings withheld until after interrogation and confession will be ineffective in preparing a suspect for successive interrogation, close in time and similar in content. The manifest purpose of question-first is to get a confession the suspect would not make if he understood his rights at the outset. When the warnings are inserted in the midst of coordinated and continuing interrogation, they are likely to mislead and "deprive a defendant of knowledge essential to his ability to understand the nature of his rights and the consequences of abandoning them." The Court distinguished Oregon v. Elstad, 470 U.S. 298, because it involved an inadvertent failure to give warnings, and the second warned interrogation was separated in time and place from the first.

United States v. Rambo, ___ F.3d ___ (10th Cir. No. 03-1242, filed 4/23//2004). Defendant's confession implicating himself in two counts of robbery affecting commerce in violation of 18 U.S.C. § 1951(a), two counts of using a firearm in furtherance of a crime of violence in violation of 18 U.S.C. § 924(c), and one count for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g) should have been suppressed due to officer's failure to give Miranda warnings and obtain a knowing, voluntary waiver. After interrogating Rambo's accomplice, the Officer told Rambo that "responsibility would be spread around the table," and asked Rambo, who was clearly in custody, if he wanted to talk about this stuff. Rambo answered "No." The officer continued talking to him, and Rambo eventually confessed. The statements should have been suppressed because they were a product of the functional equivalent of interrogation, Rambo invoked his right to remain silent, and the government could not prove it scrupulously honored Rambo's invocation of the right. http://www.kscourts.org/ca10/cases/2004/04/03-1242.htm

United States v. Valenzuela, 365 F.3d 892 (10th Cir. 2004). Defendant's post-arrest statements were properly suppressed; there was no objective evidence supporting the government's contention that she was driving a pickup in tandem with a marijuana-laden Cadillac; she was arrested without probable cause at roadside when she was handcuffed and brought to the border patrol station. The government relied on the following six factors: (1) both the Cadillac and the truck driven by Defendant Valenzuela bore Arizona license plates, (2) Defendant Valenzuela and the driver of the Cadillac drove near each other on two highways close to the border, (3) when Agent Lewis passed Ms. Valenzuela's truck, her left hand was covering her face, (4) after Agent Lewis pulled in behind the Cadillac, Ms. Valenzuela passed the Cadillac rather than remain nearby to render assistance, (5) the Cadillac was covered with dust while the pickup truck was not, and (6) approximately 250 pounds of marijuana were found in the Cadillac. "The government places great weight on the fact that Ms. Valenzuela and Mr. Reynaga were traveling in "close proximity" to each other. However, when we strip away the rhetoric we have only two facts_both vehicles had Arizona plates and both were heading toward Arizona on an Interstate highway. Hardly unusual." The court went on to say:

The inescapable conclusion to be drawn from the record is that Agents Lewis and Huerta suffered from a lack of communication and failed to fully investigate the facts before arresting Ms. Valenzuela. Agent Lewis testified that he only told Agent Huerta to stop the vehicle and see if he could transport Ms. Valenzuela to the border patrol station. Aplt. App. at 162-63. It is not exactly clear why Agent Huerta felt compelled to handcuff Ms. Valenzuela and put her in the back of his vehicle, particularly since she had consented to go to the station to answer questions. Moreover, despite his suspicions, Agent Lewis failed to use any available investigative tools to confirm his thoughts. Remarkably, none of the agents ever even asked Mr. Reynaga or Ms. Valenzuela at roadside whether they were traveling together. Careless police work does not justify dispensing with the Fourth Amendment.

http://laws.lp.findlaw.com/10th/032210.html

Fellers v. United States, 540 U.S. ___, 124 S.Ct. 1019, ___ L.Ed.2d ___ (No. 02-6320, filed 1/26/2004). Two Nebraska officers went to Fellers' home after a federal grand jury indicted him on conspiracy to distribute methamphetamine charges. Officers did not give Miranda warnings, but asked Fellers about his association with four other co-conspirators. Fellers made inculpatory statements. Officers then arrested him and transported him to jail, where they Mirandized him and obtained a waiver. Fellers repeated his inculpatory statements. The 8th Circuit held both confessions were admissible. The United States Supreme Court reversed, holding the first interrogation was custodial and violated Fellers' Sixth Amendment rights because he had already been indicted. They remanded the case for consideration of whether the knowing and voluntary standard of Oregon v. Elstad, 470 U.S. 298 (1985) allows admission of the jailhouse confession after the officer's violation of the Sixth Amendment.

State v. Hebert, ___ Kan. ___, ___ P.3d ___ (No. 88,084, filed 1/16/2004). Defendant, a prison escapee, shot and killed a police officer and a police canine. A KBI agent took the defendant to the Junction City police department and the agent told the defendant he "wanted to get both sides of the story." Defendant said "the officer and the dog came up the stairs and he stuck his head out there and I shot him." He also admitted to shooting the dog. The agent then Mirandized the Defendant, and he repeated his admissions. Defendant claimed his confessions should be suppressed due to the unwarned custodial interrogation. The Kansas Supreme Court held that admission of the first confession was error, but it was harmless because the second confession closely followed the first and did not result from coercive police tactics.

Reckless Driving

State v. Remmers, ___ Kan. ___, ___ P.3d ___ (No. 89721, filed 12/17/2004). Something more than inattentive driving is necessary to support a conviction of reckless driving. In this case, the defendant was driving on a rural road on a clear day. There was no evidence of speeding, swerving, driving erratically or leaving the scene of an accident. Defendant did not see a stop sign and ran it, broadsiding a truck. He told the officer he was suffering from cranial-rectal inversion. There is no indication that defendant's conduct showed a realization of the imminence of danger and a conscious and unjustifiable disregard of that danger.

Search & Seizure

City of Topeka v. Grabauskas, 33 Kan.App.2d 210, 99 P.3d 1125 (2004). Stop of a girl who somewhat matched the description of a runaway was a valid public safety stop.

State v. Conn, 278 Kan. 387, 395, 99 P.3d 1108 (2004). K.S.A. 22-2501(c) does not permit a warrantless automobile search incident to arrest for the purpose of discovering a valid driver's license or proof of insurance when the driver has been arrested for driving without a valid license or insurance. However, if there is probable cause to believe that obstruction is occurring by submission of a false name, the officer can search the car under the automobile search exception.

United States v. Poppelsdorf, ___ F.3d ___ (10th Cir. No. 04-2077, filed 12/30//2004). When a district court grants a suppression motion finding a lack of reasonable suspicion for continued detention, that ruling will generally will not be overturned on appeal. Here a New Mexico officer stopped a car Eastbound on I-40 near Gallup for failure of the occupants to wear seat belts. The vehicle was rented, and had a radar detector in it. The driver and the passenger had inconsistent stories and were allegedly "extremely nervous." Both denied consent to search. The officer detained them while awaiting a canine, and once the canine alerted, the officers obtained a warrant and found methamphetamine, drug paraphernalia and a loaded .357.

State v. Creason, ___ Kan.App.2d ___, ___ P.3d ___ (No. 90,959, 10/8/2004). If the officers do not have enough grounds to get a no-knock warrant, but the magistrate issues one, the Leon good-faith exception applies. In this case, officers knew the suspect might be violent, but they didn't know if he might be armed. The Court of Appeals said officers did not have enough information to get a no-knock warrant. Ironically, the officers found a handgun and a rifle in defendant's house, along with his drugs.

http://www.kscourts.org/kscases/ctapp/2004/20041008/90959.htm

Boyd v. Benton County, 374 F.3d 773 (9th Cir. 2004). The Ninth Circuit rules that throwing a "flash-bang" device "blind" into an apartment which officers believed might have an armed robbery suspect and up to eight other people sleeping there, who were not involved in the robbery, was an excessive use of force when it was done without a warning or the consideration of alternatives. Officers were entitled to qualified immunity from liability, however, as the law on the subject was not clearly established at the time (October 1997).

United States v. Kimoana, ___ F.3d ___ (10th Cir. No. 03-4023, filed 9/16/2004). Denial of defendant's motion to suppress evidence is affirmed where entry and the resultant search were justified by consent given by a third party with both actual and apparent authority, and the officers did not exceed the scope of his consent. http://www.kscourts.org/ca10/cases/2004/09/03-4023.htm

State v. Horn, ___ Kan. ___, ___ P.3d ___ (No. 90,066, filed 06/18/2004). Warrantless entry into residence was justified by the emergency doctrine. Neighbors had not seen elderly woman in a few days, and it was unusual for her mail to stack up. Her son, who was living with her, would not open the door, which was unusual for him. When police pushed open the door and saw a body on the floor covered by a sheet, the emergency doctrine excused their warrantless entry. The doctrine applies when officers "would have been derelict in their duty had they acted otherwise." Once they entered, the son stated he had killed his mom. The physical evidence supported that story. Someone beat the decedent over the head with a level repeatedly, and then tried to saw off her head for at least 30 minutes while she was still alive.

United States v. Jackson, ___ F.3d ___ (10th Cir. No. 03-2260, filed 8/18/2004). DEA agent's search of a baby powder container did not exceed the scope of defendant's consent. The agent found out defendant was traveling on Amtrak and purchases a one-way ticket with cash. The agent approached defendant and questioned him, asking if he had any narcotics. Defendant said he was not. The agent asked for consent to search defendant's bag for drugs. Defendant said "yes," and did not try to revoke consent when the agent removed the baby powder container, removed the lid with his Leatherman and found a clear plastic bag submerged in the baby powder. The agent arrested defendant and at the DEA office, cut the top off the baby powder container. The court held the first search was within the scope of defendant's consent, and he second was a valid plain view search. A defendant's failure to limit the scope of consent or object when the search exceeds what he later claims was a more limited consent is an indication that the search was within the scope of consent. United States v. Marquez, 337 F.3d 1203, 1208-09 (10th Cir. 2003). Actual destruction of a container or rendering it useless generally requires explicit authorization or some other lawful basis to proceed, United States v. Osage, 235 F.3d 518, 522 (10th Cir. 2000), but here the container was not destroyed.

State v. Tonroy, 32 Kan. App. 2d 920, 92 P.3d 1116 (2004). District court properly suppressed the marijuana and methamphetamine seized from defendant's pocket. Officers were dispatched to a call of marijuana smoke coming from Florida Lee's apartment. Lee consented to the officer's entry, and a search of the apartment. There were eight people present in the apartment, and their jackets were laying on the bed. The officers smelled a strong smell of marijuana smoke. The searched the jackets on the bed, and found the drugs and defendant's ID in one of the jackets. The court held that Lee had no actual or apparent authority to consent to the search of defendant's jacket.

United States v. McCullough, ___ F.Supp. ___ (2004 WL 1099777 D.Kan. 2004), affirmed 457 F.3d 1150 (10th Cir. 2006).. Officer's warrantless entry into the home was justified by exigent circumstances. Officers responded to a burglar alarm call. They saw two people with dirty clothes coming out of the basement. They were nervous and fidgety. They explained they were there building a fence, and had permission from the homeowner to use the bathroom in the house, although they did not know the homeowner's name. The female subject dialed her cell phone and handed it to the officer, saying the person on the other end would be the homeowner. It wasn't. The dialed again and a female identified herself as the homeowner and said the two had permission to be there while building a fence, although she did not know or could not recall their names. At that point, officers entered the house thinking a burglary might be in progress. They saw a bag a marijuana in plain view, and a open trash bag containing a larger quantity of marijuana. They exited the house and obtained a warrant. The court held their initial entry into the home was justified by exigent circumstances.

United States v. Rosborough, 366 F.3d 1145 (10th Cir. 2004). A trooper stopped the defendant for speeding six miles over the limit near Laramie Wyoming. After returning defendant and his passenger's driver's licenses and registration, the trooper answered the men's request for directions, then asked them if they had any illegal substances in the vehicle. Defendant said "if you want to search the car, go ahead." The trooper accepted, telling the men the search would just take a few minutes. After searching for seven minutes, the trooper called for a canine, which arrived about 45 minutes into the search. Defendant consented to a canine search of the interior. The canine alerted in the front passenger area, and the passenger admitted he smoked marijuana in the car earlier. The men then revoked their consent, but the officer searched the trunk based on the canine alert and found 30 pounds of cocaine. The Tenth Circuit held the consent was voluntary and the canine alert gave the trooper probable cause to search the whole car. Cf. United States v. Nielson, 9 F3d. 1487, 1489 (10th Cir. 1993)(officer's detection of the smell of burnt marijuana coming from the passenger compartment only gives rise to probable cause to search the passenger compartment - not the trunk).

United States v. Burbage, ___ F.3d ___ (10th Cir. No. 03-2184, filed 4/27/2004). DEA agents boarded a train and questioned defendant about his travel plans since he bought a one-way ticket from LA to Philadelphia with cash. Defendant left the train, but then returned. Officer saw a backpack in the overhead compartment that hadn't been there before. Defendant said the backpack belonged to the guy that was sitting next to him, but other passengers said no one had been sitting next to him. Defendant finally said the mystery passenger gave defendant permission to put defendant's green folder in the backpack. District court properly denied defendant's motion to suppress the cocaine, found during the search of a backpack defendant denied owning. Because the backpack was abandoned, it is immaterial who opened it, or whether defendant gave consent to search. "By affirmatively denying to Perry that he owned the backpack, Defendant lost any objectively reasonable expectation of privacy in the backpack as a whole. To deny ownership is to announce to the world, "you want it, you can have it, as far as I'm concerned." Having made that announcement, Defendant could not reasonably expect Perry to recognize that he had a privacy interest in the backpack."

United States v. Miramonted, ___ F.3d ___ (10th Cir. No. 03-1199, filed 4/21/2004). Members of the Denver Police Department had probable cause to justify defendant's warrantless arrest; the ensuing search of his person, revealing the presence of cocaine, and his vehicle, revealing the firearm, were incident to that arrest. Officers were called to a bar on a man with a gun call. The owner of the bar told police he denied admittance to the man, who then raised his shirt, pulled a gun and pointed it at the bar owner, and asked "Do we have a problem now?" The bar owner relented and let him in. Before going in the defendant went to his truck and laid it on the seat in plain view. Officers arrived and were given a detailed description of the suspect. Two officers went in the bar and arrested him. They returned to his truck with the keys, opened the door and secured the gun. The district court suppressed the evidence holding that the officer who stood by at the truck was a "mere spectator," and all her information was based on hearsay. In reversing, the Tenth Circuit held the collective knowledge of police officers was sufficient to establish probable cause and said:

"At the outset, we agree with counsel that some, if not much, of Garcia's testimony was based on hearsay. But hearsay testimony is admissible at suppression hearings such as the present one and should be considered by a district court in deciding whether an arrest was based on probable cause. U.S. v. Matlock, 415 U.S. 164, 173 (1974) (Rules of evidence applicable in criminal jury trials do not govern at hearings before a judge to determine pre-trial evidentiary matters, such as the admissibility of evidence at trial.) See also U.S. v. Merritt, 695 F.2d 1263, 1270 (10th Cir. 1982)(Police should be permitted to offer hearsay as testimony to support reasonable suspicion.) See Federal Rules of Evidence 104."

http://laws.lp.findlaw.com/10th/031199.html

United States v. Abdendi, ___ F.3d ___ (10th Cir. No. 02-1435, filed 3/22//2004). Encounter between officers and defendant was a consensual encounter, even though three officers entered the apartment where defendant was staying (with consent) at 6:15 a.m. to question defendant's roommate, they were armed (although not displaying weapons), and opened defendant's door waking him from sleep, identifying themselves as police officers and asking or telling him to go to the living room. There, defendant admitted he was in the country illegally.

United States v. Johnson, ___ F.3d ___ (10th Cir. No.03-2153 , filed 4/15/2004). Officer's stop and detention of defendant was justified by reasonable suspicion. Officer had a non-anonymous tip that a black male appeared to be forcing a pre-teen girl to walk through a high-crime area. Upon contact by the officer, the girl said she was ok, but the defendant acted "fidgety," Defendant was also carrying a walkie-talkie and kept keying up the mike, but not saying anything. When the officer told the defendant he was going to pat him down, the defendant told the officer he had a gun. Based on the totality of the circumstances, there was reasonable suspicion for the stop and pat down. Walkie-talkies are often used by drug traffickers and they suggest the close proximity of a coconspirator. http://www.kscourts.org/ca10/cases/2004/04/03-2153.htm

United States v. Rhoiney, ___ F.3d ___ (10th Cir. No. 03-3136, unpublished filed 4/5/2004). Officer Wheeles and Sergeant Endsley's testimony that Andre Rhoiney's car weaved within its own lane was sufficient reasonable suspicion to support a traffic stop, despite the defendant's contention that the officer could not see the defendant's car from his location based on the topography of the area. The credibility of witnesses is an issue for the trial court. http://www.kscourts.org/ca10/cases/2004/04/03-3136.htm

United States v. Oliver, ___ F.3d ___ (10th Cir. No. 02-4187, filed 4/6/2004). Grant of motion to suppress evidence seized during a traffic stop is reversed. Officer's questions regarding the contents of a suspicious package were prompted by and directly related to defendant's objectively suspicious behavior; opening the package at the station without a warrant did not violate the Fourth Amendment, as there was probable cause to believe that it contained contraband. http://laws.lp.findlaw.com/10th/024187.html

State v. Gonzalez, ___ Kan.App.2d ___, ___ P.2d ___ (No. 90,970, filed 3/12/2004). Defendant did not have standing to object to search of a motel room. Police officers and a parole officer entered the room looking for a parolee. Gonzales immediately entered the bathroom and slammed the door. The parole officer entered, and found methamphetamine. The district court suppressed the evidence, finding police lacked authority to enter. Gonzales did not testify regarding his relationship, if any, with the registered renter of the room. In the absence of any evidence showing that Gonzales was an overnight guest or registered renter of the room, the Court of Appeals held that he did not have standing to object to the search. http://www.kscourts.org/kscases/ctapp/2004/20040312/90970.htm

United States v. Palmer, ___ F.3d. ___ (10th Cir. No. 03-5115, filed 03/09/2004). Officers search of a locked glove box on a traffic stop was justified by a reasonable suspicion the suspect might be armed and dangerous. An officer turned on his emergency lights and attempted to stop the car for speeding in a school zone. The suspect looked back at the police car and pointed to himself as if to ask, Me? The officer nodded and motioned for the suspect to pull over into a nearby parking lot. Instead, the suspect remained in his lane, made a left hand turn at the next intersection and accelerated. The officer reactivated his siren. The suspect crossed a lane of traffic and pulled into a parking lot, proceeding past about 25 empty parking places before eventually stopping. During this time, the officer observed the suspect reaching behind the seat and towards the glove box. http://www.kscourts.org/ca10/cases/2004/03/03-5115.htm

United States v. Carter, ___ F.3d ___ (10th Cir. No. 03-3045, filed 3/8//2004). TPD officers "sweep" of a detached garage within the curtilage of the home was not justified based on exigent circumstances and therefore violated the Fourth Amendment. Remanded for consideration of whether consent given was a fruit of the illegal search. Court later held consent was invalid. Officers were there for a knock & talk. Defendant and his friend approached officers in an aggressive manner. One of them dropped a baggie of marijuana upon finding out officers were there. Officers "swept" the garage and found guns therein. Defendant was a convicted felon. http://www.kscourts.org/ca10/cases/2004/03/03-3045.htm

United States v. Vercher, 358 F.3d 1257 (10th Cir. 2004). Trooper had reasonable suspicion to perform a traffic stop on a vehicle that appeared to be following another vehicle too closely on the Interstate. The trooper testified that when he first noticed defendant's minivan, it was about two car lengths (twenty to twenty-five feet) behind the preceding vehicle and driving approximately seventy miles per hour uphill on a quarter mile incline. The trooper testified that based upon his training and experience, this was not a safe distance to follow behind another car, and a safe following distance would have been between 100 and 150 feet. Although the videotape of the stop included a few details that were not included in the troopers testimony, and road and other factors must be considered when stopping for a violation of K.S.A. § 8-1523(a), there was reasonable suspicion, and the dope found during the subsequent inventory search (neither driver or passenger were authorized operators under the lease), should not have been suppressed. The court stated:

            Reasonable suspicion requires that an officer provide "some minimal level of objective justification." I.N.S. v. Delgado, 466 U.S. 210, 217 (1984). However, an officer with reasonable suspicion need not "rule out the possibility of innocent conduct" as long as the totality of the circumstances suffices to form "a particularized and objective basis" for a traffic stop. United States v. Arvizu, 534 U.S. 266, 277_78 (2002) (citation omitted). Moreover, reasonable suspicion may be supported by an "objectively reasonable" good faith belief even if premised on factual error. See United States v. Walraven, 892 F.2d 972, 974_75 (10th Cir. 1989) (quotation omitted). Finally, reasonable suspicion may rely on information less reliable than that required to show probable cause, Alabama v. White, 496 U.S. 325, 330 (1990), and it need not be correct. See United States v. Callerman, 273 F.3d 1284, 1287 (10th Cir. 2001) (upholding a traffic stop based on a reasonable articulable suspicion that a cracked windshield substantially obstructed the driver's view--the standard required by statute--regardless of whether or not the crack actually constituted a violation of the law); United States v. Allegree, 175 F.3d 648, 650 (8th Cir. 1999) (upholding a traffic stop based on the mistaken, yet reasonable, belief that defendant had illegal headlights).

            According to the government, an observation of a following distance approximately one-fourth to one-fifth of what was testified as generally considered safe is, in this case, sufficient to effectuate a traffic stop under K.S.A. § 8-1523(a). We agree. Of the factors listed by the statute--speed, following distance, road conditions, and traffic conditions--the only factor found by the district court not to have been taken into account by Rios was the particular traffic conditions surrounding the stop. However, as the videotape reveals, general traffic conditions--i.e., relatively few vehicles driving on the road--were patently apparent. K.S.A. § 8-1523(a) establishes that the danger of following too closely is manifested by the distance between vehicles, with due regard for the speed, road, and traffic conditions. On a rural interstate in Kansas, an officer's observation of the high speed and dangerously close traveling distance provides sufficient objective justification to suspect that the distance between the vehicles is not "reasonable and prudent." Although Terrell's added explanation of the particular traffic conditions may establish that a traffic violation had not in fact occurred under Kansas state law, that does not trump the relevant standard before us; Rios's observations need only articulate a basis for a suspicion that a traffic violation might have been occurring.

Groh v. Ramirez, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 02-811, filed 2/24/2004). The search of plaintiffs' ranch was clearly unreasonable under the Fourth Amendment. The warrant was plainly invalid, failing to describe with particularity the items to be seized; because it did not describe these items at all, the search was presumptively unreasonable; defendant, who prepared and executed the warrant, is not entitled to qualified immunity because no reasonable officer could believe such a warrant to be valid.

United States v. Mathis, ___ F.3d ___ (10th Cir. No. 02-7138, filed February 12, 2004). Four confidential cooperating witnesses supplied information to law enforcement officers, who in turn gave it to a District Attorney investigator who swore out an Affidavit for a search warrant. The defendant claimed the Affidavit did not establish probable cause for issuance of the warrant because it was based on multiple layers of hearsay, contained inconsistent statements and stale information. Basically, the four informants testified they knew defendant and had been present and either participated in or observed drug transactions take place. Their information was internally corroborated (two witnesses described the same truck at defendant's house and saw surveillance equipment in defendant's house), and externally corroborated (Affiant drove by house and saw same truck). The 10th Circuit held the magistrate's reliance on hearsay information as a basis for probable cause to issue a search warrant was not error, and the district court did not abuse its discretion in denying a motion to compel disclosure of the identities of two confidential informants.

United States v. Williams, ___ F.3d ___ (10th Cir. No. 03-2065 , filed 1/30/2004). Detection dog's sniff of defendant's waist and groin area, which alerted it to the presence of drugs, did not transform the encounter into an illegal seizure. Defendant walked into a bus station and encountered a plain clothes officer. He changed direction rather abruptly, arousing the officer's suspicions. About ten minutes later, the officers, including a canine, approached the Defendant. The canine apparently sensed an odor worth pursuing and placed her nose in the immediate vicinity of Mr Williams's waist and groin area, and sat down to alert her handler. Officers told defendant it was a narcotics canine, and had alerted. The officers asked to see Defendant's bus ticket and identification and Defendant offered the officers permission to search his bag. After not finding anything, the officer asked to search defendant's person. Defendant then fled and tossed his drugs as he was being pursued. The court held there was no illegal detention or search.

United States v. Hernandez-Rodriguez, ___ F.3d ___ (10th Cir. No. 02-1238, filed 1/16/2004). Agents intercepted a package containing cocaine, and received an anticipatory warrant to search the residence to which the package was addressed. The triggering event, "upon delivery," was sufficiently set out in the affidavit. Articulation of the triggering event serves two important purposes. First, it ensures that the warrant will not be executed prematurely, before there is probable cause. Second, and more importantly, it "maintains judicial control over the probable cause determination and over the circumstances of the warrant's execution." If the triggering event were articulated in terms of an exercise of the officer's unfettered discretionary judgment _ for example, "when events occur that establish probable cause" _ this would transfer control over probable cause determinations from the magistrate to the law enforcement officer, and thus undermine the purpose of the warrant requirement. Accordingly, an anticipatory warrant is valid only if "the conditions precedent to execution are clearly set forth in the warrant or in the affidavit in support." Hugoboom, 112 F.3d at 1085; Rowland, 145 F.3d at 1201.

Traffic Stops

State v. Knight, 33 Kan.App.2d 325, 326-27, 104 P.3d 403 (2004). A Wichita ordinance requiring the use of a turn signal on public streets does not apply to a private parking lot. Police officer did not have reasonable suspicion of a traffic violation when vehicle failed to signal a turn out of a grocery store parking lot onto Broadway street. Furthermore, purchase of two boxes of cold pills, a six-pack of bottled water and table salt does not provide reasonable suspicion to stop the vehicle. See also State v. Schneider, 32 Kan.App.2d 258, 80 P.3d 1184 (2003)(two persons each buying two boxes of cold pills did not constitute reasonable suspicion for a stop). The methamphetamine manufacturing paraphernalia and the driver's confession should have been suppressed.

United States v. Poppelsdorf, ___ F.3d ___ (10th Cir. No. 04-2077, filed 12/30//2004). When a district court grants a suppression motion finding a lack of reasonable suspicion for continued detention, that ruling will generally will not be overturned on appeal. Here a New Mexico officer stopped a car Eastbound on I-40 near Gallup for failure of the occupants to wear seat belts. The vehicle was rented, and had a radar detector in it. The driver and the passenger had inconsistent stories and were allegedly "extremely nervous." Both denied consent to search. The officer detained them while awaiting a canine, and once the canine alerted, the officers obtained a warrant and found methamphetamine, drug paraphernalia and a loaded .357.

Thorton v. United States, 541 U.S. 615, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 03-5165, filed 5/24/2004). Officer attempted to stop a suspicious vehicle for illegal tags. Before the officer could stop him, the defendant parked in a parking lot and got out of the car. The officer approached the defendant, asked for his identification and advised him that his tags were illegal. The defendant became extremely nervous and began rambling. The officer conducted a voluntary pat-down and found drugs. He arrested the defendant, then searched his car incident to arrest and found a handgun under the driver's seat. The defendant was charged with felon in possession of a firearm and moved to suppress claiming that New York v. Belton, 453 U.S. 454 (1981) does not allow a search incident to arrest of a vehicle if the suspect is no longer in the vehicle. The United States Supreme Court held that it does not matter if the defendant has already left the vehicle; Belton still allows a search of a "recent occupants" vehicle incident to arrest.

United States v. Rhoiney, ___ F.3d ___ (10th Cir. No. 03-3136, unpublished filed 4/5/2004). Officer Wheeles and Sergeant Endsley's testimony that Andre Rhoiney's car weaved within its own lane was sufficient reasonable suspicion to support a traffic stop, despite the defendant's contention that the officer could not see the defendant's car from his location based on the topography of the area. The credibility of witnesses is an issue for the trial court. http://www.kscourts.org/ca10/cases/2004/04/03-3136.htm

United States v. Palmer, ___ F.3d. ___ (10th Cir. No. 03-5115, filed 03/09/2004). Officers search of a locked glove box on a traffic stop was justified by a reasonable suspicion the suspect might be armed and dangerous. An officer turned on his emergency lights and attempted to stop the car for speeding in a school zone. The suspect looked back at the police car and pointed to himself as if to ask, Me? The officer nodded and motioned for the suspect to pull over into a nearby parking lot. Instead, the suspect remained in his lane, made a left hand turn at the next intersection and accelerated. The officer reactivated his siren. The suspect crossed a lane of traffic and pulled into a parking lot, proceeding past about 25 empty parking places before eventually stopping. During this time, the officer observed the suspect reaching behind the seat and towards the glove box. http://www.kscourts.org/ca10/cases/2004/03/03-5115.htm

United States v. Vercher, ___ F.3d ___ (10th Cir. No. 03-3110, filed 2/24/2004). Trooper had reasonable suspicion to perform a traffic stop on a vehicle that appeared to be following another vehicle too closely on the Interstate. The trooper testified that when he first noticed defendant's minivan, it was about two car lengths (twenty to twenty-five feet) behind the preceding vehicle and driving approximately seventy miles per hour uphill on a quarter mile incline. The trooper testified that based upon his training and experience, this was not a safe distance to follow behind another car, and a safe following distance would have been between 100 and 150 feet. Although the videotape of the stop included a few details that were not included in the troopers testimony, and road and other factors must be considered when stopping for a violation of K.S.A. § 8-1523(a), there was reasonable suspicion, and the dope found during the subsequent inventory search (neither driver or passenger were authorized operators under the lease), should not have been suppressed.

Illinois v. Lidster, 540 U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 02-1060, filed 1/13/2004). Police set up a highway checkpoint to obtain information from motorists about a fatal hit-and-run accident occurring about one week earlier at the same location and time of night. Officers stopped each vehicle for 10 to 15 seconds, asked the occupants whether they had seen anything happen there the previous weekend, and handed each driver a flyer describing and requesting information about the accident. As Lidster approached, his minivan swerved, nearly hitting an officer. The officer smelled alcohol on Lidster's breath. Another officer administered a sobriety test and then arrested Lidster. He was convicted in Illinois state court of driving under the influence of alcohol. Lidster challenged his arrest and conviction on the ground that the government obtained evidence through use of a checkpoint stop that violated the Fourth Amendment. The trial court rejected that challenge, but the state appellate court reversed. The State Supreme Court agreed, holding that, in light of Indianapolis v. Edmond, 531 U. S. 32, the stop was unconstitutional. The United States Supreme Court reversed, holding that brief highway checkpoint stops, when appropriately tailored by police seeking information about a crime of considerable public concern that was in all likelihood committed by others, do not violate the Fourth Amendment rights of motorists. Edmond makes it illegal to have random stops for general "crime control" purposes, but does not prohibit information-seeking checkpoints like the one in this case. The absence of suspicion to stop the cars is not important because the law ordinarily permits police to seek the public's voluntary cooperation in a criminal investigation. The Court held the stops were reasonable because the relevant public concern was grave, and the stop advanced this concern to a significant degree given its timing and location. Most importantly, the stops interfered only minimally with liberty of the sort the Fourth Amendment seeks to protect. Viewed objectively, each stop required only a brief wait in line and contact with police for only a few seconds. Viewed subjectively, the systematic contact provided little reason for anxiety or alarm, and there is no allegation that the police acted in a discriminatory or otherwise unlawful manner

Use of Force

Brosseau v. Haugen, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 03-1261, filed 12/13/2004)(per curium). Officer shot a person wanted an a felony, no-bail warrant after a short foot chase and the felon jumped into a vehicle and fled the area. At the moment he started the vehicle and tried to move it, the officer believed the felon was a threat to "other officers on foot who [she] believed were in the immediate area, [and] for the occupied vehicles in [Haugen's] path and for any other citizens who might be in the area." The felon pled guilty to felony eluding. He sued the officer for excessive force. Applying Saucier v. Katz, 533 U.S. 201, the Ninth Circuit held the officer was not entitled to qualified immunity because her force was clearly excessive and she should have known that based on "fair warning" in the general tests set forth in Graham v. Conner, 490 U.S. 386 and Tennessee v. Garner, 471 U.S. 1. The Supreme Court summarily reversed, finding the law on shooting someone using a car as a deadly weapon is not clearly established, each case turns on its own unique facts, and the defendant's actions fell in the "hazy border between excessive and acceptable force."






















































































































































































































































































































2003 Police Case Update List


ADA

Raytheon v. Hernandez, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 02-749, filed 12/2/03). The Ninth Circuit improperly applied a disparate-impact analysis to plaintiff's disparate-treatment claim and improperly focused on factors that pertain only to disparate-impact claims, and thus ignored the fact that defendant's no-hire policy is a quintessential legitimate, nondiscriminatory reason for refusing to rehire an employee who was terminated for violating workplace conduct rules (drug use).

Arrest

Maryland v. Pringle, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 02-809, filed 12/15/03). Police can arrest all occupants of the car in a constructive drug possession case. Officers conducted a traffic stop at 3:16 a.m. and found $763 in the glove box and five baggies of cocaine in a back seat armrest. Miraculously, all three occupants of the vehicle denied any knowledge of the drugs or cash. The front seat passenger, Pringle, was convicted and sentenced to 10 years in prison. He later told police the drugs were his and he planned to exchange them for sex or money at a party. A Maryland appellate court held the police had no probable cause to arrest Pringle. The United States Supreme Court reversed, finding the drugs were clearly meant for sale, and it is reasonable for the officer to assume that most drug dealers only associate with other drug dealers who won't rat them out. "A car passenger . . . will often be engaged in a common enterprise with the driver, and have the same interest in concealing the fruits or the evidence of their wrongdoing." Thus, police had probable cause to arrest Pringle.

Burglary

State v. Vinyard, ___ Kan.App.2d ___, ___ P.2d ___ (No. 89,548, filed 11/14/2003, review denied 02/10/04). An individual who has been banned from a store (Dillards) that enters a completely enclosed and secured business separate and apart from other businesses in a public mall, with the intent to steal, the defendant can be found guilty of aggravated burglary.

Civil & Criminal Liability

Abner Louima. In 1997, officers assaulted Haitian immigrant Abner Louima in New York City. Louima was restrained by an officer in a police station bathroom while another sodomized him with a broken broomstick. Louima suffered a ruptured bladder and colon and spent two months in a hospital. One officer pleaded guilty and is serving a 30-year sentence, and another was convicted of perjury and is serving a five-year sentence.

Marshall v. Columbia Lea Regional Hospital, 345 F.3d. 1157 (10th Cir. 2003). In a 42 U.S.C. section 1983 action arising from an allegedly race-motivated and unconstitutional traffic stop and field sobriety test, summary judgment was premature on Equal Protection and Fourth Amendment claims arising from a warrantless blood test, and on related supervisory and municipal liability claims and state law claims.

Civil Process

Cook v. Cook, ___ Kan.App.2d ___, ___ P.2d ___ (No. 90176, filed 11/21/2003). Wife sued husband for negligence resulting in an automobile accident that occurred on March 14, 2000. She filed her suit on March 7, 2002, and sent the petition and discovery requests to husband by certified mail on May 30, 2002. She later personally served him a summons and complaint on July 17, 2002. Husband appealed from denial of a motion to dismiss alleging the 2-year statute of limitations ran and lack of effective service. The court of appeals held the suit should have been dismissed because wife failed to serve summons within 90 days of filing the petition. Actual notice of a lawsuit is no substitute for service.

Criminal Law

United States v. Jimenez Recio, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 01-1184, filed 1/21/2002). Where police have frustrated a conspiracy's specific objective but conspirators (unaware of that fact) have neither abandoned the conspiracy nor withdrawn, these special conspiracy-related dangers remain, as does the conspiracy's essence--the agreement to commit the crime. Here, police intercepted a truckload of drugs. With the help of the drivers, they set up a sting. A relief driver and his partner showed up and took the truck. Both were convicted of conspiracy. The Ninth Circuit set the convictions aside, holding that where the object of the conspiracy has been destroyed, no conspiracy can exist. The United States Supreme Court reversed.

Smith v. Doe, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 01-729, filed 3/5/2003). The Alaska Sex Offender Registration Act's retroactive requirement applying the registrations requirement to convictions prior to the effective date of the law is not punitive and does not violate the Ex Post Facto clause of the United States Constitution.

Connecticut Department of Public Safety v. Doe, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 01—1231, filed 3/5/2003).Connecticut's "Megan's Law" requiring persons convicted of sexual offenses to register with the Department of Public Safety (DPS) upon their release into the community, and requires DPS to post a sex offender registry containing registrants' names, addresses, photographs, and descriptions on an Internet Website and to make the registry available to the public in certain state offices does not violate the equal protection clause of the United States Constitution.

Ewing v. California, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 01—6978, filed 3/5/2003), & Lockyer v. Andrade, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 01-1127, filed 3/5/2003). California's three strikes law does not result in cruel & unusual punishment. While on parole, Ewing was convicted of felony grand theft for stealing three golf clubs, worth $399 apiece. His third strike sentence was 25 years to life. Andrade was convicted of two felony counts of petty theft with a prior conviction after he stole approximately $150 worth of videotapes from two different stores. His third strike sentence was two consecutive terms of 25 years to life.

DUI

City of Wichita v. Hackett, 275 Kan. 848, 69 P.3d 621 (2003). City can prohibit DUI on a bicycle, although it does not count as a DUI conviction under state law.

State v. Seems, ___ Kan.App.2d ___, ___ P.2d ___ (No. 89114, filed 8/8/2003). In order to prosecute a defendant under K.S.A. 8-1567(f), a felony, there must first be a preliminary hearing finding of probable cause to believe that the necessary prior convictions have occurred.

State v. Coberly, Ellis County District Court case prosecuted by Ellis County Attorney Tom Drees, profiled in 11 K.L. 345 (week of August 26 - Sept. 1, 2001). Issue was whether the Horizontal Gaze Nystagmus Test is scientifically accurate enough to be admitted into evidence. State will called Psychologist Marcelline Burns of the Southern California Research Institute in Los Angeles, and Karl Citek, a professor at Pacific University in Forest Grove, Oregon. Burns did NHTSA research on HGN and Citeck is published on effect of alcohol on the eyes. Drees said the case was the "vehicle we're using to get [the issue] up to the Kansas Supreme Court." On 4/11/03, the Kansas Court of Appeals affirmed the district court's decision suppressing the results of HGN. State v. Coberly, ___ Kan.App.2d ___, ___ P.2d ___ (No. 88547, unpublished decision filed 4/11/2003, rev. denied, ___ Kan. ___, ___ P.3d ___ (6/25/2003).

City of Norton v. Hurt, ___ Kan. ___, ___ P.3d ___ (No. 89,016 filed 4/18/2003). Where a second DUI occurred after an earlier diversion, and after a change in the DUI law doing away with the 5-year decay factor, there is no ex post facto problem in the enhanced penalty for the second offense.

City of Kingman v. Lubbers, 31 Kan. App. 2d 426, 429, 65 P.3d 1075, rev. denied 276 Kan. 967 (2003). Defendant argued that a preliminary breath test constituted a search of deep lung air, and consent to the procedure given after being threatened with a traffic violation if he refused, was coerced. The court held that consent was freely given, even if there was a threat of a traffic violation for refusal. Informing a driver of the actual legal consequences does not invalidate the consent.

City of Hutchinson v. Minor, 2003 WL 22831740 (Kan.App), 79 P.2d 795 (table, unpublished opinion filed 11/26/03). Margin of error arguments regarding a breath test of 0.084 was a jury question, and the test was sufficient evidence, in the absence of expert testimony by the defendant, for the jury to convict the defendant of driving with a breath alcohol concentration of 0.08 or more.

First Amendment

Virginia v. Hicks, 123 U.S. 2191, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 02-371, filed 6/16/2003). Public housing policy that prohibits loitering in the public areas of crime-plagued public housing complexes does not violate the First Amendment. The policy is not too vague to be enforced. Defendant spent over a year in jail on criminal trespass charges.

Government Officials

Board of County Commissioners of Lincoln County, Kansas v. Nielander, ___ Kan. ___, ___ P.3d ___ (No. 88,844, filed 1/31/2003). The Sheriff, not the county commissioners, has the authority to hire and fire deputies. The commissioners two attempts to fire a deputy were null and void. Also, once commissioners have approved a Sheriff's budget, they cannot insist the Sheriff follow county purchasing guidelines to get approval for any expenditure over $250. Only if the Sheriff goes over budget can commissioners insist on approval.

Interrogation

State v. Walker, ___ Kan. ___, ___ P.3d ___ (No. 88665, filed 12/19/2003). Where an accused unequivocally requests an attorney, and police continue to question him about the death of a 16-month old child in a drive-by shooting, any statements made to the police after the invocation were involuntary and should be suppressed. After Walker said, "If I could talk to my grandma right now. I just need to talk to a lawyer, man--I can't wait till I go downstairs," police were required to honor that request. Their failure to do so requires suppression of all statements after that point and, because the confession was not suppressed, reversal of Walker's convictions."

Conviction for first degree felony murder and discharge of a firearm at an occupied dwelling reversed.

State v. Sweat, ___ Kan.App.2d ___, ___ P.3d, ___ (No. 86536, filed 7/21/02). Defendant claimed her confession to murder should be suppressed because she had taken eight Valium before her interview. Court held confession was admissible because officers read Miranda warnings and got a knowing, voluntary waiver. Although defendant appeared tired, she did not appear to be irrational or under the influence of alcohol or drugs. The interviewing detectives acknowledged that Sweat had said she had taken Valium, but they did not ask her about it. During the interview, Sweat spoke very clearly, was animated at times, argued with the officers, and appeared to understand what was going on. Although she intermittently put her head down, she appeared to adopt this posture when her responses were being challenged. The only time she put her head down for an extended period of time was when the officers were outside of the room.

Chavez v. Martinez, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 01-1444, filed 5/27/03). The Supreme Court held the questioning of a gravely wounded man who was never charged with a crime did not violate his rights under the Fifth or Fourteenth Amendments, and thus he could not maintain a 42 U.S.C. § 1983 suit against the officer. Two officers saw a suspicious person approach when they were investigating narcotics activity. They ordered him to the ground, and found a knife in his waistband. A scuffle ensued, in which the suspect tried to grab one officer's gun. The officers shot the suspect several times, leaving him blinded and paralyzed after being shot in the eye and spine. A patrol supervisor interrogated the suspect at the hospital. The interrogation lasted a total of 10 minutes over a period of 45 minutes, the breaks caused by administration of emergency medical treatment to the suspect. The Ninth Circuit held that coercive police interrogation violated Martinez's rights, and supported a civil rights cause of action. A plurality of the U.S. Supreme Court reversed, holding that there is no Fifth Amendment violation until a confession resulting from coercive police interrogation is introduced against the defendant in a criminal proceeding. However, the case was remanded to determine if the government's conduct violated Chavez's due process rights under the Fourteenth Amendment.

Kaupp v. Texas, 538 U. S. ____, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 02-5636, filed 5/5/2003). Where a criminal defendant was arrested without probable cause prior to his being questioned by police, his subsequent confession must be suppressed where the state failed to allege any meaningful intervening event between the illegal arrest and the confession. Kaupp was suspected in the death of a 14-year-old girl. Deputies questioned the girl's half brother, who implicated Kaupp. Detectives immediately tried but failed to obtain a warrant to question Kaupp. In the company of two other plain clothes detectives and three uniformed officers, Detectives went to Kaupp’s house at approximately 3 a.m. Kaupp’s father let them in. Detectives went to Kaupp’s bedroom, awakened him with a flashlight, identified themselves and said, " ‘we need to go and talk.’ " Kaupp said "‘Okay.’" Officers handcuffed Kaupp and led him, shoeless and dressed only in boxer shorts and a T-shirt, out of his house and into a patrol car. The officers did not tell Kaupp he was free to decline to go with the officers. They stopped for 5 or 10 minutes where the victim’s body had just been found, in anticipation of confronting Kaupp with the brother’s confession, and then went on to the sheriff’s headquarters. There, they took Kaupp to an interview room, removed his handcuffs, and advised him of his rights under Miranda v. Arizona, 384 U. S. 436 (1966). Kaupp first denied any involvement in the victim’s disappearance, but 10 or 15 minutes into the interrogation, told of the brother’s confession, he admitted having some part in the crime. The United States Supreme Court held the confession should be suppressed due to the illegal arrest, saying, "[s]ince Kaupp was arrested before he was questioned, and because the state does not even claim that the sheriff’s department had probable cause to detain him at that point, well-established precedent requires suppression of the confession . . . ."

Miscellaneous

City of Wichita v. Smith, 31 Kan.App.2d 837, 75 P.3d 1228 (2003). Appeals filed outside the 10-day limit of K.S.A. 22-3608 are untimely, even if the court stayed the sentence knowing the defendant intended to appeal. Even though the Court of Appeals had no jurisdiction, it held the language of the ordinance in question, providing that noises exceeding certain decibel levels are declared to be excessive, does not require decibel measurements in all cases for there to be a finding of excessive noise. A noise ordinance which requires a city to prove the alleged excessive noise interferes with the use or enjoyment of property of any person of reasonable sensibilities residing in or occupying the area, is not unconstitutionally vague.

http://www.kscourts.org/kscases/ctapp/2003/20030822/89693.htm

Lawrence v. Texas, 539 U.S. 558, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 02-102, filed 6/26/2003). Texas's antisodomy law, which prohibits "deviate sexual intercourse with another individual of the same sex." is unconstitutional and invades on defendant's privacy.

Quigley v. Rosenthal, ___ F.3d ___ (10th Cir. No. 01-1228, filed 4/22/2003). Interception and use of the radio portion of a cordless telephone call became illegal on October 25, 1994. 18 U.S.C. § 2510, 2511.

Privacy

Haber v. Evans, ___ F.Supp. ___ (No. 03-CV-3376, E.D. Pa. 2003). Philadelphia Inquirer has no right to the names of troopers cleared of misconduct in a sexual harassment investigation by internal affairs. Victims, witnesses and confidential informants names can also be redacted. Although the public has a right to know an investigation was conducted, there is less of an interest to know the identities of those who are cleared of misconduct.

Search & Seizure

United States v. Gonzalez-Acosta, 989 F.2d 304 (10th Cir.2003). Defendant was stopped at a border checkpoint and a canine alerted on her vehicle. She filed a pretrial motion to suppress based on the reliability of the canine and sought production of "training records, veterinary records, false-positive/false-negative alert records and all other records establishing the dog's ability to smell." The district court denied the request. The Court of Appeals affirmed, stating:

 

First, we do not believe the documents were relevant because the dog was certified on the day in question and because the dog properly alerted to the presence of contraband. See generally United States v. McCranie, 703 F.2d 1213, 1218 (10th Cir.) (alert by explosives-sniffing dog not formally trained to detect drugs nonetheless created reasonable suspicion that defendant's suitcase contained contraband), cert. denied, 464 U.S. 992 (1983); United States v. Williams, 726 F.2d 661, 663-64 (10th Cir.) (concluding dog alert was valid despite dog's somewhat anomalous behavior in detecting the presence of narcotics), cert. denied, 467 U.S. 1245 (1984). Indeed, had the dog's records indicated it had false-alerted in the past, defendant's ability to cross-examine would not have been enhanced because there is no doubt it correctly alerted in this instance. Moreover, based on defense counsel's extensive cross-examination of Agent Pena at the suppression hearing, we simply cannot say the defendant was precluded from either preparing for the suppression hearing or from exploring the issue of dog reliability.


State v. Boyd, ___ Kan. ___, ___ P.3d ___ (No. 86,553, filed 3/7/ 2003). Driver consented to a search of his car. A female passenger started to get out with her purse. An officer told her to leave it. Officers found crack cocaine in the purse. The Court held that search of the purse violated the passenger's Fourth Amendment right against unreasonable search and seizure. Distinguishes Wyoming v. Houghton, 526 U.S. 295 on the basis that the search in that case was based on probable cause.

United States v. Thomas, ___ F.3d ___ (10th Cir. No. 02-7096, filed 8/19/2003)(unpublished). Vehicle ran into a Dairy Barn. The owner called police because the driver was slumped over the wheel and had a gun in the front seat. Officers removed Thomas from the vehicle and found methamphetamine during an inventory search. Thomas claimed the search was illegal because there was no lawful impoundment of the vehicle, noting the Dairy Barn was private property and the owner had not consented to towing the vehicle. The Court held the impoundment was lawful and the search was lawful. By calling the police, the owner impliedly consented to towing the vehicle..

U.S. v. Banks; ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 02-473, filed 12/2/03). North Las Vegas police officers and FBI agents executed a search warrant for cocaine and drug paraphernalia at a small apartment. The knock and announcement was so loud that it could be heard by the officers positioned at the rear door of the apartment. After waiting 15-20 seconds and, hearing no response, the officers forcibly entered the apartment by breaking down the front door. A search of the apartment yielded a number of weapons and cocaine. In a 2-to-1 decision, the Ninth Circuit reversed the defendant's conviction, ruling that the officers failed to wait a reasonable amount of time before forcibly entering the apartment. The United States Supreme Court reversed, stating the officers' 15-to-20-second wait before forcible entry satisfied the Fourth Amendment. "Since most people keep their doors locked, entering without knocking will normally do some damage, a circumstance too common to require a heightened justification when a reasonable suspicion of exigency already justifies an unwarned entry. We have accordingly held that police in exigent circumstances may damage premises so far as necessary for a no-knock entrance without demonstrating the suspected risk in any more detail than the law demands for an unannounced intrusion simply by lifting the latch. United States v. Ramirez, 523 U. S. 65, 70-71 (1998). Either way, it is enough that the officers had a reasonable suspicion of exigent circumstances." Rejecting the argument that travel time to the door should be the main consideration, the Court stated: "when circumstances are exigent because a pusher may be near the point of putting his drugs beyond reach, it is imminent disposal, not travel time to the entrance, that governs when the police may reasonably enter; since the bathroom and kitchen are usually in the interior of a dwelling, not the front hall, there is no reason generally to peg the travel time to the location of the door, and no reliable basis for giving the proprietor of a mansion a longer wait than the resident of a bungalow, or an apartment like Banks's. And 15 to 20 seconds does not seem an unrealistic guess about the time someone would need to get in a position to rid his quarters of cocaine." See also United States v. Jenkins, 175 F. 3d 1208, 1215 (10th Cir. 1999) (holding a 14-to-20-second wait at 10 a.m. reasonable).

United States v. Manjarrez, ___ F.3d ___ (10th Cir. No. 03-5017, filed 11/4/2003). Police officer who received consent to search a car, and does so without backup, may pat down the driver in the interests of officer safety. "Trooper Roland, unassisted at the time, could not reasonably be expected to leave Defendant in his patrol car, turn his back on Defendant, insert his head into Defendant's car, and search the car without first checking Defendant for weapons. The record shows that Trooper Roland was concerned for his safety and wanted to conduct the search of Defendant's car without fear of violence. Accordingly, we hold that Trooper Roland's minimally intrusive pat-down of Defendant was lawful based on Defendant's prior consent to search his car."

United States v. Tueller, 349 F.3d 1239, 1243 (10th Cir. 2003). Conviction for firearms possession is affirmed where the district court properly denied defendant's motion to suppress as the evidence in defendant's car would inevitably have been discovered in the course of a lawful inventory search. Defendant was stopped for speeding and had three warrants. Officer gave defendant option of having his car picked up by friends or being towed. Defendant chose the friend option, but they did not show up in the hour that the arresting officer waited. Officer began inventorying car, and had a canine sniff the interior. The dog alerted to gearshift boot. Officer found methamphetamine and a key to the trunk. In the trunk, the officer found a gun. Court holds that hypothetical inventory search of the trunk would have been in accordance with police policy and was constitutional, justifying a finding of inevitable discovery. The court stated:

In our view, the fact that the officers break into the trunk does not in itself render the inventory search unconstitutional. We see no reason to distinguish the passenger compartment from the trunk in this regard. And we note that in Opperman itself--the leading Supreme Court decision on inventory searches--the officers lacked a key to enter the locked passenger compartment. Indeed, the South Dakota Supreme Court, whose decision was reviewed in Opperman, described the entry of Opperman's car in a manner consistent with the stipulated finding in this case that the "officers['] procedure . . . would have been to break into the trunk." District Ct. Order on Remand at 1. The South Dakota court wrote: "The police officer ordered the tow truck operator to break into the vehicle, which he succeeded in doing by unlocking the door with a tool." State v. Opperman, 228 N.W.2d 152, 153 (S.D. 1975) (emphasis added). Thus, we decline to hold that an inventory search of a motor vehicle cannot include breaking into the trunk.


United States v. Cervine, 347 F.3d 865 (10th Cir. 2003). Stop of defendant's vehicle was supported by reasonable suspicion to believe he failed to maintain a single lane and that he was believed to be transporting drugs based on information from DEA officer. Collective knowledge doctrine applies. Approximately 30-50 minute was for a canine unit was not unreasonable under the circumstances.

State v. Goss, ___ N.H. ___ (filed 09/29/2003)(profiled in Topeka Capital-Journal 9/30/03). The New Hampshire Supreme Court ruled Monday that garbage is private, even when it has been put out near the street for collection. The 4-1 decision runs counter to rulings by the U.S. Supreme Court and high courts in most other states. But the court said New Hampshire's constitution provides a stronger expectation of privacy than the U.S. Constitution. The decision came in a case in which police searched a man's trash and found wire scrapers coated with marijuana residue. Based on that and the observation that John Goss appeared to have a light for growing plants, police got a warrant to search his home, where they seized marijuana and three pipes. Goss appealed, saying it was illegal for police to search his garbage without a warrant. The high court agreed and ordered a lower court judge to decide whether the search warrant for Goss' home could have been obtained without the illegal evidence. "Personal letters, bills, receipts, prescription bottles and similar items that are regularly disposed of in household trash disclose information about the resident that few people would want to be made public," Justice Joseph Nadeau said. "Nor do we believe that people voluntarily expose such information to the public when they leave trash, in sealed bags, out for regular collection." Justice John Broderick dissented, citing a 1988 U.S. Supreme Court ruling that it was unreasonable for people to expect their trash to remain private, given that "plastic garbage bags left on or at the side of a public street are readily accessible to animals, children, scavengers, snoops, and other members of the public."

United States v. Ramirez, ___ F.3d ___ (10th Cir. No. 02-8103, filed 9/8/2003). A narcotics detection canine's failure to alert in a first examination of a mail package did not "vindicate" the package and eliminate reasonable suspicion to require that the package be returned to the mail stream. Detaining the package for two subsequent sniffs of the package did not constitute a search.

United States v. Hocker, ___ F.3d ___ (10th Cir. No. 02-4148, filed 6/26/2003). Driver of a borrowed automobile may have standing to object to its search. Court will inquire (1) whether the defendant asserted ownership over the items seized from the vehicle; (2) whether the defendant testified to his expectation of privacy at the suppression hearing; and (3) whether the defendant presented any testimony at the suppression hearing that he had a legitimate possessory interest in the vehicle. In this case, defendant was pulled over based on an informant tip. He had several IDs with various names. A drug dog alerted to the car and after a consent search, methamphetamine was found under the driver's seat. Defendant testified he borrowed the car from Sandra. A VIN check showed it registered to Louis Alberto Madueno, Sandra's cousin. Defendant thought Sandra bought it from Louis, and defendant happened to know both of them. Defendant had also stayed with Sandra a week, and the car was there the whole time. Based on this evidence, the court of appeals concluded that Defendant had standing to object to the search of the car.

United States v. Flowers, 336 F.3d. 1222 (2003). Arrest and subsequent search of defendant's home were invalid absent exigent circumstances, where only defendant's hand and arm were visible and he used a hole in the wall so that he would not have to open his door, and neither he nor the interior of his house would be open to public view. After buying bootleg alcohol from defendant, Tulsa officers ordered him to "Open the Door."

United States v. Lackey, 334 F.3d 1224 (10th Cir. 2003). Officers about to conduct a lawful frisk or search of a suspect need not give Miranda warnings before asking the suspect about the presence of dangerous objects on his person.

United States v. Hatfield, 333 F.3d 1189, 1194 (10th Cir. 2003). Police activity of spotting marijuana growing in defendant's back yard from the vantage of an adjacent pasture, did not amount to an unconstitutional search triggering the protections of the Fourth Amendment. Police can go on private property to conduct an investigation if their movements are restricted to places visitors could be expected to go, including walkways, driveways and porches.

Kuha v. City of Minnetonka, ___ F.3d ___ (8th Cir. No. 02-1081, filed 5/8//2003). Plaintiff's allegation that the city's police officers failed to give him a verbal warning prior to using a police dog trained to bite and hold was sufficient to state a Fourth Amendment claim. The district court erred in finding city not liable under 42 U.S.C. section 1983 as a matter of law.

United States v. Blackwell, ___ F.3d ___ (10th Cir. No. 02-1062, filed 3/25/2003). Officers have a right to be concerned for their safety when someone shines a red laser light at them. An enhancement for possessing a gun in connection with felony menacing, U.S.S.G. section 2K2.1(b)(5), was proper where defendant pointed a gun at police officers, who were in fear of imminent bodily threat. An official victim enhancement, U.S.S.G. section 3A1.2(a), applies only to the offense of conviction, not to that offense accompanied by relevant conduct.

United States v. Cavely, ___ F.3d ___ (10th Cir. No. 01-5165, filed 2/4/2002). Officers had an arrest warrant for Cavely for methamphetamine production. They went to his house to serve the warrant. Cavely did not answer the knocks at his door, but officers saw him come out the back door and head towards a detached garage carrying two cans of Coleman fuel. They arrested him, and found methamphetamine and $4000 cash on him. They also smelled a cooking methamphetamine lab in the house, and Cavely told them a "friend" was in the house. Officers entered, and made a brief 90-second sweep looking for the friend. During this search, they found a methamphetamine lab and drugs. Based on their observations, they obtained a warrant and seized the evidence. The court held this was a valid "protective sweep" and was reasonable under the circumstances the officers faced.

United States v. Hannum, ___ F.3d ___ (10th Cir. No. , 02-30228, filed 1/31/2003)(unpublished). A sheriff's officer saw a vehicle with an invalid registration in a convenience store parking lot. The tag on the two-door Chrysler registered to a four-door Chrysler. The deputy entered the lot, and contacted the driver, who turned out to be the defendant, and about whom the police had tips the defendant was manufacturing methamphetamine. Defendant admitted he didn't own the car, or have proof of insurance, but consented to a search. Deputies found a shotgun and paraphernalia in the trunk. The deputies impounded the car, obtained a search warrant for defendant's house, and found seventy-four grams of ephedrine/pseudoephedrine, along with other paraphernalia. Defendant claimed the impoundment was illegal because the rightful owner of the car could have driven it away. The 10th Circuit rejected his argument, holding that despite the fact that lack of proper registration is not specifically listed as grounds for impoundment in State v. Teeter, 819 P.2d 651. 653 (Kan. 1991) & State v. Boster, 539 P.2d 294, 299 (Kan. 1975), the vehicle could not lawfully be operated, therefore it was subject to impoundment. Alternatively, the deputies could have impounded the vehicle pursuant to their community care-taking function.

Van Cleave v. City of Marysville, Kansas, ____ F.Supp.2d ___ (D.Kan. No. 01-2233-CM, filed 1/23/2003). Van Cleave and Frazier were drinking at a bar together, then went to Frazier's house, where Van Cleave allegedly raped Frazier. A drunk Frazier showed up at the police station and claimed he was raped. He didn't readily recall the name of the rapist, but told officers to call his wife, who did remember his name. Frazie