January 1, 2016 through December 31, 2016 (or thereabouts)
Quick Links 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://ca10.washburnlaw.edu/
Full text of Kansas Appellate decisions: http://www.kscourts.org/Cases-and-Opinions/opinions/
Belsito Communications Inc. v. Decker, ___ F.3d ___ (1st Cir. No. 16-1130, filed 12/23/16). Belsito and Blackden filed this suit alleging that New Hampshire State Trooper James Decker violated their constitutional rights when he seized Blackden's camera at the scene of a vehicle fatality crash in August 2010. Blackden dressed as a firefighter and drove a surplus ambulance and claimed to be "Penacook Rescue,", but they didn't know who he was. Belsito and Blackden lost on summary judgment. The 1st Circuit affirmed. In light of applicable law, it concluded, first, that Belsito lacks standing to pursue its constitutional claim; and, second, that even if Trooper Decker did violate Blackden's constitutional rights (a point not decided), Blackden failed to identify clearly-established law in August 2010 placing the illegality of the Trooper's conduct beyond debate.
Liverman v. City of Petersburg, Va., ___ F.3d ___ (4th Cir. No. 15-2207, filed 12/15/16). Officers were discipline for Facebook posts lamenting the lack of experience of officers that had been recently promoted. Finding the officers were speaking on matters of public concern, and reversing summary judgment for a chief being challenged on a social media policy, the court said:
Two police officers challenge disciplinary actions for violations of their Department’s social networking policy. The district court denied relief on most of their claims. While we are sensitive to the Department’s need for discipline throughout the chain of command, the policy here and the disciplinary actions taken pursuant to it would, if upheld, lead to an utter lack of transparency in law enforcement operations that the First Amendment cannot countenance….
We appreciate the need for order and discipline in the ranks. See Maciariello, 973 F.2d at 300 (recognizing that “greater latitude is afforded to police department officials in dealing with dissension”). At the same time, we cannot countenance an arm of government with such enormous powers being removed to this extent from public scrutiny. This is not an all or-nothing matter; there is a balance to be struck. But the Department’s social networking policy, and the disciplinary actions taken to enforce it, lean too far to one side. We therefore hold that Chief Dixon is not entitled to qualified immunity….
Running a police department is hard work. Its mission requires capable top-down leadership and a cohesion and esprit on the part of the officers under the chief’s command. And yet the difficulty of the task and the need for appropriate disciplinary measures to perform it still does not allow police departments to wall themselves off from public scrutiny and debate. That is what happened here. The sensitivity of all the well-known issues that surround every police department make such lack of transparency an unhealthy state of affairs. The advent of social media does not provide cover for the airing of purely personal grievances, but neither can it provide a pretext for shutting off meaningful discussion of larger public issues in this new public sphere.
See also Brickey v. Hall, ___ F.3d ___ (4th Cir. No. 14-1910, filed 07/08/16). Police officer Randall Brickey was fired for comments he made as a candidate for town council that were critical of his employer, the Saltville Police Department, and its Police Chief, Rob Hall. Brickey filed suit under 42 U.S.C. § 1983 for retaliatory discharge in violation of the First Amendment. The district court denied Hall qualified immunity, he filed an interlocutory appeal. Because it was debatable at the time of Brickey's dismissal that his speech interests as a citizen outweighed Hall's interests as a public employer, the 4th Circuit held that Hall was entitled to qualified immunity, and reversed.
Bailey v. Wheeler, ___ F.3d ___ (11th Cir. No. 15-11627, filed 11/28/16). Plaintiff Derrick Bailey complained about racial profiling within his agency. He also indicated that officers made racially offensive comments and jokes about minorities. The department did not do anything for a while, but after Bailey was told to re-write reports and he pointed out that department policy prohibited it, Bailey was fired. He appealed. The next day Major Wheeler issued a BOLO picturing Bailey, warning that he was a “loose cannon” who presented a “danger to any [law-enforcement officer] in Douglas County,” and directing officers to “act accordingly.” Bailey sued. The district court denied Wheeler's motion to dismiss Bailey's claims and Wheeler appealed. The 11th Circuit affirmed the decision, holding there was plent of evidence to suggest a violaiton of Bailey's First Amendment rights.
Denton v. Yancey, ___ F.3d ___ (10th Cir. No. 15-5114, unpublished, filed 10/03/16). Lieutenant Mike Denton was one of a group of police officers who arrested a domestic abuse suspect in June 2011. Another officer later filed a complaint against Denton claiming he used excessive force during the arrest. The agency agreed and fired Denton, although an arbitrator later reinstated him. After he was reinstated, Denton's lawyer released a detailed account of the video footage from the June arrest to the Tulsa World. Prior to that time, the City had opposed the Tulsa World's open-records requests for the video footage because it was the subject of ongoing litigation and invaded Denton's privacy. After Denton's lawyer released the summary, the city released the actual tape. Denton then filed suit, arguing the City had released the tape in retaliation for his testimony at the hearing, and had only instituted an investigation in the first place because of Denton's e-mail to his fellow union members on July 7. The district court granted the City summary judgment on all claims, and Denton appealed. The Circuit found that Denton could not establish that his July 7, 2011 e-mail had been a motivating factor in the City's decision to investigate, as no evidence suggested the chief of police had been aware of Denton's e-mail at the time the investigation began. The Tenth Circuit affirmed summary judgment on all claims.
Heffernan v. City of Patterson, New Jersey, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 14-1280, filed 04/26/16). Heffernan claims his superiors at the Paterson, New Jersey, Police Department violated his free speech rights in 2005 when they demoted him after mistakenly assuming he was backing a challenger in a local mayoral race. It turns out Heffernan wasn't supporting the candidate, but was seen picking up a campaign sign for his mother. Lower courts ruled that the city didn't violate Heffernan's constitutional rights since he wasn't actually taking sides in the election. Roberts said. Heffernan initially won a $105,000 jury verdict against the city, but the judge later tossed the decision and recused himself due to a conflict of interest. A new judge dismissed the case and a federal appeals court affirmed. The United States Supreme Court reversed. Where when an employer demotes an employee out of a desire to prevent the employee from engaging in protected political activity, the employee is entitled to challenge that unlawful action under the First Amendment and section 1983, even if the employer's actions are based on a factual mistake about the employee's behavior. "When an employer demotes an employee out of a desire to prevent the employee from engaging in political activity that the First Amendment protects, the employee is entitled to challenge that unlawful action under the First Amendment and 42 U. S. C. §1983 -- even if, as here, the employer makes a factual mistake about the employee's behavior." Thomas and Alito dissent. Because Heffernan concedes he was not engaged in First Amendment activity, there should be no right to sue.
Swindol v. Aurora Flight Sciences Corporation, ___ F.3d ___ (5th Cir. No. 14-60779, filed 08/08/16)(not really a 2d Amendment case, but deals with a public policy right to possess a firearm). A man who, contrary to his employer's policy, kept a locked gun in his car in the company parking lot can sue for wrongful termination under Mississippi law. The circuit court's ruling recognizes a new public policy exception to the doctrine of at-will employment. Swindol was an employee at Aurora Flight Sciences Corp. in Mississippi. One day, he came to work and locked a gun in his car in the company parking lot. When Swindo's employer found out about the gun, it terminated him and also issued a company wide warning that Swindol was a "security risk." Swindol sued for wrongful termination and defamation. The trial court dismissed both of Swindol's claims with prejudice. He appealed. The circuit court found that state law allows workers to keep their firearms in locked vehicles on company grounds despite the company's contravening policy. As a result, Mississippi Code Section 45-9-55 cannot be used as a justification to terminate an at-will employee.
Hollis v. Lynch, ___ F.3d ___ (5th Cir. No. 15-10803, filed 06/30/16). A 1986 federal statute makes possession of a “machinegun” unlawful. Jay Aubrey Isaac Hollis submitted an application to the Bureau of Alcohol, Tobacco, Firearms and Explosives to manufacture a machinegun. ATF denied his application pursuant to the 1986 statute. Hollis filed suit, challenging the constitutionality of the 1986 statute. The district court dismissed the suit, holding that Hollis lacked standing, and, in the alternative, that machineguns are not protected by the Second Amendment. We disagree about standing, but we AFFIRM the district court's judgment. Such weapons are "dangerous and unusual" and not at all like the weapons that would have been used by militias during the founding of the nation. "Heller took it as a given that M-16s are dangerous and unusual weapons and not protected by the Second Amendment."
Voisine v. United States, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 14-10154, filed 06/27/16). Voisine pleaded guilty to assaulting his girlfriend in violation of §207 of the Maine Criminal Code, which makes it a misdemeanor to “intentionally, knowingly or recklessly cause[ ] bodily injury” to another. When law enforcement officials later investigated Voisine for killing a bald eagle, they learned that he owned a rifle. After a background check turned up Voisine’s prior conviction under §207, the Government charged him with violating §922(g)(9). Armstrong pleaded guilty to assaulting his wife in violation of a Maine domestic violence law making it a misdemeanor to commit an assault prohibited by §207 against a family or household member. While searching Armstrong’s home as part of a narcotics investigation a few years later, law enforcement officers discovered six guns and a large quantity of ammunition. Armstrong was also charged under §922(g)(9). Both men argued that they were not subject to §922(g)(9)’s prohibition because their prior convictions could have been based on reckless, rather than knowing or intentional, conduct and thus did not quality as misdemeanor crimes of domestic violence. The District Court rejected those claims, and each petitioner pleaded guilty. The First Circuit affirmed. The United States Supreme Court agreed. A reckless domestic assault qualifies as a “misdemeanor crime of domestic violence” under §922(g)(9).
Peruta v. County of San Diego, ___ F.3d ___ (9th Cir. No. 10-56971, filed 06/09/16). The en banc Ninth Circuit held the 2d Amendment does not create a right for members of the general public to carry concealed firearms in public. The plaintiffs alleged that their counties, San Diego County and Yolo County, published policies defining good cause that violated their Second Amendment right to keep and bear arms.
Chesney v. City of Jackson, ___ F.Supp. 2d ___ (No. 14-11097, E.D. Mich. Mar. 21, 2016). On the one-year anniversary of the Boston Marathon bomb attack, Jeremiah Chesney was arrested at a Michigan Secretary of State vehicle title office after he initially entered with a loaded pistol on his hip and then returned, carrying a backpack and acting suspiciously, muttering to himself and pacing back and forth. A call was placed to police stating that Chesney had a concealed weapon. When officers arrived there were 50 to 60 people waiting in the title office. Chesney ignored officers' requests that he come outside peaceably to speak with them and refused to provide any identification. He was uncooperative when officers attempted to handcuff him and was charged with resisting arrest, ultimately spending 2 days in the county jail. Charges were subsequently dropped. A records check indicated that he had a permit to carry a weapon and that his pistol had been validly purchased and registered. He sued the arresting officers and the City of Jackson under § 1983, alleging violation of his Second Amendment right to carry a firearm and First Amendment right of expression, as well a Fourth Amendment-based claim for wrongful arrest without probable cause. The Court held that officers had qualified immunity in detaining and subsequently arresting Chesney. The Court rejected plaintiff's argument that openly carrying a firearm in public is a form of expression protected by the First Amendment and is a guaranteed Second Amendment right. It noted that Heller had only explicitly referenced use of arms to protect the "hearth and home." Neither the Supreme Court nor the Sixth Circuit, as plaintiff acknowledged, had established that open carry was guaranteed by the Second Amendment.
Colorado Outfitters v. Hickenlooper, ___ F.3d ___ (10th Cir. No. 14-1290, filed 03/22/16). After the Aurora theater shooting, Colorado Gov. John Hickenlooper proposed and pushed for restrictions on gun possession and ownership which Colorado passed. A legion of sheriffs from a majority of Colorado's counties brought suit together with various non-profits and business against Hickenlooper. The plaintiffs argued that the new laws violated the Second Amendment. The trial at the district court lasted almost ten days, and ultimately the plaintiffs lost. Plaintiff's appealed, but the 10th Circuit held they did not have standing to sue. The general standard for determining whether or not someone can sue in federal court is whether or not that person has been or will immediately be harmed by the defendant's actions. Here, the sheriffs raised only "speculative fear," which does not rise to the level of injury or immediate harm.
Caetano v. Massachusetts, 577 U. S. ____, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 14-10078, filed 03/21/16)(Per Curiam). The Supreme Judicial Court of Massachusetts upheld a Massachusetts law prohibiting the possession of stun guns after examining “whether a stun gun is the type of weapon contemplated by Congress in 1789 as being protected by the Second Amendment.” 470 Mass. 774, 777, 26 N. E. 3d 688, 691 (2015). Their ruling conflicts with our precedent stating “the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding,” District of Columbia v. Heller, 554 U. S. 570, 582 (2008), and that this “Second Amendment right is fully applicable to the States,” McDonald v. Chicago, 561 U. S. 742, 750 (2010). The judgment of the Supreme Judicial Court of Massachusetts is vacated, and the case is remanded for further proceedings not inconsistent with this opinion.
Kolbe v. Hogan, ___ F.3d ___ (4th Cir. No. 14-1945, filed 02/04/16). A Maryland law passed in 2013 bans law-abiding citizens (with the exception of retired law enforcement officers), from possessing the vast majority of semi-automatic rifles commonly kept by several million American citizens for defending their families and homes and other lawful purposes. Plaintiffs sued, claiming the law violated the 2d Amendment. The district court granted the State summary judgment, applying intermediate scrutiny. The 4th Circuit reversed, holding that strict scrutiny was the appropriate test.
Brown v. Battle Creek Police Department, ___ F.3d ___ (6th Cir. No. 16-1575, filed 12/19/16). Officers obtained a warrant to search a known gang member's house for drugs and evidence of drug dealing. They encountered a a large, brown pit bull, weighing about 97 pounds, and a smaller white pit bull, weighing about 53 pounds. The lead officer said the brown pit bull lunged at him so he shot it. The white dog ran to the basement. As officers entered the basement the brown dog was growling and barking at the base of the stairs. The lead officer shot and killed the first dog, then noticed the white dog standing about halfway across the basement. The second dog was not moving towards the officers when they discovered her in the basement, but rather she was “just standing there,” barking and was turned sideways to the officers. The officer shot and killed the white dog. The district court granted the officers qualified immunity. The Circuit agreed. "The standard we set out today is that a police officer’s use of deadly force against a dog while executing a warrant to search a home for illegal drug activity is reasonable under the Fourth Amendment when, given the totality of the circumstances and viewed from the perspective of an objectively reasonable officer, the dog poses an imminent threat to the officer’s safety."
State v. Cleverly, ___ Kan. ___, ___ P.3d ___ (No. 111282, filed 12/23/16). Cleverly was a passenger in a vehicle detained for a traffic stop, after which a law enforcement officer conducted a series of searches of Cleverly and his effects, ultimately discovering methamphetamine in a cigarette package. Cleverly appealed his possession of methamphetamine conviction, claiming the district court erred in denying his motion to suppress the evidence obtained during an unlawful warrantless search. The Court of Appeals found that the final search of the cigarette package was consensual and sufficiently attenuated from an earlier unlawful pat-down of Cleverly. The Supreme Court disagreed and reversed. An El Dorado officer stopped the truck for its occupants not wearing seat belts, then saw the occupants making furtive gestures. After ticketing the driver for no insurance, the officer obtained consent to search the vehicle. Officers told Cleverly to get out and subjected him to a nonconsensual, involuntary pat-down search, but didn't find anything. Cleverly later consented to a person search, which did not yield anythign either. The officer asked to search his cigarette boxes, which were laying on the hood of the patrol car. Cleverly handed the boxes to the officer, who found methamphetamine in one of them. The Supreme Court held the consent was basically coerced because it came during an illegal detention. An officer who tells a person to exit a vehicle, puts hands on that person without consent, and directs the person to stand in front of the patrol car has not signaled to that person that he or she is totally free to disregard the officer's questions, decline the officer's requests, or otherwise terminate the encounter. Those detention indicators are not trumped by congenial conversation during the prolonged encounter. "[T]he individual rights assured to all citizens through the Bill of Rights of the United States Constitution are not inconvenient technicalities designed to irritate governmental agents. Moreover, if a search is unconstitutional, it is illegal, and its purpose cannot be labeled "valid.'" Before ending, we pause briefly to reject the State's creative, yet unavailing, theoretical arrest argument. The State contends that an objectively reasonable officer would have been justified in arresting Cleverly for the seat belt violation and, thereafter, the theoretical arrest could have supported a search incident to arrest, which theoretical search might have produced the methamphetamine evidence. See K.S.A. 22-2401(d) (law enforcement officer authorized to arrest when officer directly observes misdemeanor being committed). But what might have been does not trump what did occur.
State v. Schmidt, ___ Kan.App.2d ___, ___ P.3d ____ (No. 112209, filed 12/16/16). Schmidt was in an injury accident and the investigating officer smelled the odor of an alcoholic beverage on his breath. At the hospital, the officer gave Schmidt the implied consent advisory on the DC-70 form and asked Schmidt to submit a blood sample. Schmidt agreed to do so. The blood sample inevitably showed Schmidt at 0.20. Schmidt alleged his consent was coerced and not voluntary. The district court denied his motion to suppress. The Court of Appeals affirmed. The Fourth Amendment to the United States Constitution permits warrantless breath tests incident to arrests for drunk driving but not warrantless blood tests. Moreover, motorists may not be criminally punished for refusing to submit to a warrantless blood draw and consent to a warrantless blood test cannot be premised on a threat of criminal penalties for refusal to submit to the test. In this case where a law enforcement officer requested a motorist to submit to a warrantless blood test in reliance on the Kansas Implied Consent Law prior to the United States Supreme Court's decision in Birchfield v. North Dakota, 579 U.S. __, 136 S. Ct. 2160, 195 L. Ed. 2d 560 (2016), the results of the blood test are admissible under the good-faith exception to the exclusionary rule.
Womack v. City of Sparta, Missouri, Court and Case No. unknown, profiled on KMBC on 12/07/16. A woman whose pit bull was shot last year by a southwest Missouri police chief has agreed to a $6,000 settlement. An attorney for the dog's owner announced the settlement with the city of Sparta in a news release. Then-Police Chief Andrew Spencer caught Elizabeth Womack's dog after it got loose and put it in a crate. The release said the dog was never aggressive. But Spencer, who later resigned, wrote in a police report that the dog was barking at people. Spencer said he couldn't find an animal shelter nearby that would take the dog. The police report said Spencer was dispatched to a crash and killed the dog at the department's shooting range. Loose dogs are supposed to be held for five days.
State v. Chapman, ___ Kan. ___, ___ P.3d ___ (No. 111572, filed 10/21/16). An anonymous tip of suspicious but not criminal activity did not support reasonable suspicion for a law enforcement car stop. An unidentified caller to 911 reported that two individuals were walking around a Wichita model home in the middle of an extremely snowy night. The caller was unable to tell if the two had gone inside the home. The caller also said there was a black Acura Integra in front of the model home. A dispatcher relayed the information—including the address, number of individuals, and make and model of the car—to officers on patrol, treating the report as a "suspicious character" call. The officers stopped the car in the general area. Upon approach, officers saw a gun in the back seat floorboard, which turned out to be a BB gun. Officers searched the car, found evidence of identity theft and theft, and discovered that the Acura Integra was stolen. The Supreme Court held there was no reasonable suspicion to stop the car. It cautioned counsel and district judges in future cases to take care to perform an evaluation of tip reliability in their analysis of the totality of the circumstances supporting the existence of reasonable suspicion for a car stop.
United States v. Reyes, ___ F. Supp. 3d ___, 2016 WL 4273417 (D. Kan. Aug. 15, 2016). Wichita officers received a tip that a Hispanic male was selling drugs from a duplex. They surveilled the duplex and stopped an SUV drivey by Reyes for failing to signal 100 feet before turning. Once stopped, the officers asked Reyes for his driver's license. He told the officers it was suspended and was taken into custody. After denying consent to search the SUV, officers asked him why he seemed so anxious to have his girlfriend come get the SUV rather than wait for a canine, suggesting that Reyes had something illegal in the SUV. Reyes then told officers there was a blunt on the floorboard. Officers searched and found more drugs and guns. Reyes moved to suppress all the evidence contending officers violated his Miranda rights. The district court agreed, finding the statement about something illegal in the SUV was the functional equivaelent of interrogation, but the court refused to suppress Reyes the evidence because the failure to provide Miranda warnings warnings is not a violation of a suspect's constitutional rights. The Constitution is only violated upon the admission of the improperly elicited statements at trial. Thus, the District Court held that the exclusion of such statements is a complete and sufficient remedy for Miranda violations. The District Court explained that Reyes' statement about having a blunt in his SUV cannot be used against him at trial, but with respect to the failure to provide Miranda warnings, there is no reason to apply the fruit of the poisonous tree doctrine.
Unknown Plaintiffs v. City of Furguson, Case Number Unknown, E.D. Missouri, (profiled on Police Magazine, 08/29/14). A group of people caught up in unrest in Ferguson, Mo., after a white officer killed a black teenager, sued local officials on Thursday, alleging civil rights violations through arrests and police assaults with rubber bullets and tear gas, reports Reuters. The suit, filed in U.S. District Court for the Eastern District of Missouri, says law enforcement met a broad public outcry over the Aug. 9 killing of 18-year-old Michael Brown with "militaristic displays of force and weaponry," (and) engaged U.S. citizens "as if they were war combatants." The lawsuit seeks a total of $40 million on behalf of six plaintiffs, including a 17-year-old boy who was with his mother in a fast-food restaurant when they were arrested. Each of the plaintiffs was caught up in interactions with police over a period from Aug. 11 to 13, the suit alleges. Named as defendants are the city of Ferguson, St. Louis County, Ferguson Police Chief Tom Jackson, St. Louis County Police Chief Jon Delmar, Ferguson police officer Justin Cosmo, and other unnamed police officers from Ferguson and St. Louis County.
UPDATE: from Police Magazine 10/04/16 - A federal judge on Monday dismissed a $40 million civil rights lawsuit that alleged police used excessive force against protesters in Ferguson following the death of Michael Brown. In a 74-page ruling, Judge Henry Autry sided with Missouri law enforcement saying the protesters "have completely failed to present any credible evidence that any of the actions taken by these individuals were taken with malice or were committed in bad faith." The lawsuit, which was filed by nine individuals, alleged that local police unlawfully arrested, beat, tear-gassed and shot rubber bullets at them during the Ferguson riots, NBC News reports. The judge did not agree, instead saying protest participants "were advised to disperse" but ignored "repeated warnings."
Armenta v. City of Lawrence, Douglas County District Court Case No. Unknown, profiled in Lawrence Journal-World August 29, 2016. Update: According to a Lawrence Journal-World article on 09/09/16, the lawsuit dismissed after the case was "gutted" by a 9/2/16 pretrial ruling that would limit the trial testimony to focus solely on Armenta's arrest, a ruling that Plaintiff's Attorney Jerry Levy said was the trial judge "protecting the cops." A Lawrence firefighter suing the city says he voiced his disapproval over what he deemed to be police brutality, and then left the scene under arrest and with a broken arm. The lawsuit, which accuses the Lawrence Police Department of using both excessive and negligent force, could cost the city nearly a quarter of a million dollars. Witnesses say one officer bashed a man's head against a squad car, then "manhandled" and "beat" Lawrence firefighter Miguel Armenta after police arrived at Lawrence's VFW hall, 1801 Massachusetts St., to break up an argument on the afternoon of April 19, 2014. However, police say nobody was beaten and that officers acted within their rights to keep the peace. Armenta and his attorney, Jerry Levy, filed the civil lawsuit on Oct. 20, 2014. A jury trial in the case is scheduled to begin in September. The lawsuit lists the City of Lawrence, Lawrence police officers Timothy Froese, Frank McClelland and Sgt. Craig Shanks as defendants. The lawsuit is seeking $225,000 in compensation for Armenta's injuries. The lawsuit claims three points where the defendants are at fault: Use of excessive force, Supervisory liability of Shanks and Negligent use of force. After Armenta was arrested he was found guilty of interfering with his own arrest; however, he was also acquitted of two other interfering with law enforcement charges.
Leroy Duffie v. City of Lincoln, ___ F.3d ___ (8th Cir. No. 15-2431, filed 08/23/16). Lincoln officers conducted a felony car stop on Duffie after convenience store clerks reported a young black man acting strangely. They said after he left the store, they saw him sitting in the passenger seat of a van, and he held up a gun and acted like he was blowing smoke from the barrel. That report was at 9:20 p.m. The officers stopped a van at about 12:45 a.m. thinking it might be the same van. Officers ordered the driver and sole occupant out at gunpoint, but soon realized the driver did not have any legs. And rather than a young black man, Duffie was a 58-year-old bald man. Duffie was injured and sued the officers for injuries and the search of his van. The district judge dismissed the suit finding that the defendants had qualified immunity. The Eighth Circuit, in a 2-1 decision, reversed. “Darkness limited (the officer’s) vision; nonetheless, an objectively reasonable police officer would not mistake a 58-year-old bald man for a young adult with hair.” “Officers may not turn a blind eye to facts that undermine reasonable suspicion.” During their search of the van, the officers did find a silver paintball gun. But the Circuit said that given Nebraska’s law allowing the open-carry of guns, the report of a suspicious man with a gun at the store could not be construed as a crime, and therefore was not a valid basis for stopping Duffie. Shepherd, J., dissenting, said that the officers did not have to exclude the possibility that the man at the convenience store was acting within Nebraska’s open-carry law to justify the stop.
Vasquez v. Lewis,___ F.3d ___ (10th Cir. No. 14-3278, filed 08/23/16). If it wasn't clearly settled that you can't stop a car just because it has an out of state license plate, it is now. KHP officers Richard Jimerson and Dax Lewis, stopped Vasquez late at night on I-70 in Waubunsee County, Kansas when they could not read the temporary tag taped to the inside of the car's tinted rear window. The officers contended they were justified in searching the vehicle because Vasquez was a citizen of Colorado driving on I-70, a "known drug corridor," in a recently purchased, older-model car (1992 BMW). They said he also seemed nervous. After a trooper two-step (a/k/a Columbo pivot) failed to yield consent, Lewis detained Vasquez for an additional 15 minutes to await a drug dog. Nothing illegal was found. When Vasquez sued the officers, the district court concluded the officers were entitled to qualified immunity because Vasquez’s asserted right was not clearly established. The 10th Circuit, in a 2-1 decision, disagreed. It held that the Officers acted without reasonable suspicion and violated clearly established precedent. The Court said it has repeatedly admonished law enforcement that once an officer has been assured that a temporary tag is valid, he “should . . . explain to Defendant the reason for the initial stop and then allow her to continue on her way without requiring her to produce her license and registration.” (Citations omitted.) It also pointed out that twenty-five states permit marijuana use for medicinal purposes, with Colorado, Alaska, Oregon, Washington, and Washington, D.C., permitting some recreational use under state law, the court noted. The officers' reasoning would justify the search and seizure of citizens of half of the states in the country, the court said, adding it is "wholly improper" to assume someone is more likely to commit a crime because of his state of residence. "Accordingly, it is time to abandon the pretense that state citizenship is a permissible basis upon which to justify the detention and search of out-of-state motorists, and time to stop the practice of detention of motorists for nothing more than an out-of-state license plate." Tymkovich, C.J, dissented, saying the case presented a close call on reasonable suspicion and qualified immunity should protect officers in close cases.
Davis v. Clifford, ___ F.3d ___ (10th Cir. No. 15-1329, filed 06/13/16). Lakewood Colorado officers decided to stop Davis after running her handicapped tag and finding she had a warrant for failure to maintain liability insurance. Police cars surrounded Davis's vehicle. Officers began pounding Davis’ car with their batons, demanding she exit the vehicle. Fearing for her safety, Davis asked the officers for assurances that they would not hurt her, and they responded by smashing her car window, pulling her through the broken window by her hair and arms, and throwing her on the glass-littered pavement. Davis also claims the City is culpable in failing to properly train and supervise the officers. She appealed from the district court’s grant of summary judgment, which held the officers were entitled to qualified immunity and the City was not liable. The Circuit reversed. While it noted that several facts were in dispute, the law required it to view the facts in the light most favorable to Davis. Those facts showed officers used excessive force to effect the arrest of a non-violent misdemeanant that was offering only passive resistance. "The degree of force allegedly used by police officers in this case is disturbing, and we find nothing in the record that would justify the alleged aggressive behavior of the officers."
State v. Keenan, ___ Kan. ___, ___ P.3d ___ (No. 108550, filed 08/18/16). A Lenexa officer was dispatched to Keenan's house on a report from Keenan's child's grandmother that Keenan might be: (a) violating a PFA and (b) operating a vehicle with a child inside while intoxicated. The officer arrived and saw Keenan pull into the driveway. She made contact with Keenan who asked if he could put his child inside the house, and she noticed an odor of an alcoholic beverage, and poor balance and coordination. Keenan was on his cell phone the whole time he was making his way into the house, and he refused officers' request to enter. They entered anyway due to a concern for disappearance of evidence. After a brief dust-up with Keenan, officers recovered open containers from his vehicle and charged Keenan with felony DUI, third offense, refusing a preliminary breath test, and transporting an open container. Keenan alleged all evidence should be suppressed due to officers' warrantless entry. Judge Davis denied the motion. The Court of Appeals affirmed, holding the totality of the circumstances supports a finding of probable cause to arrest Keenan for violating a PFA and a possible DUI, and exigent circumstances excused their warrantless entry. The Court distinguished Welsh v. Wisconsin, 466 U.S. 740, 104 S. Ct. 2091, 80 L. Ed. 2d 732 (1984), because Kansas DUIs and PFA violations are jailable offenses. Also, the Court determined the officers were in hot pursuit because Keenan was trying to retreat into his house from an arrest that was "set in motion in a public place." See United States v. Santana, 427 U.S. 38, 43, 96 S. Ct. 2406, 49 L. Ed. 2d 300 (1976). The Court included this cautionary language in its conclusion: "With this holding we are not establishing a bright-line rule to approve the warrantless entry into the house of a driver suspected of being under the influence of alcohol. When considering the totality of the circumstances, we are only saying the facts of this case reflect the officers' warrantless entry into Keenan's house was justified and reasonable." The Supreme Court agreed there was probable cause, but didn't answer the exigent circumstances question. It said it need not reach exigent circumstances or hot pursuit because, even if the entry was illegal, any error by the district judge was harmless. The evidence resulting from entry into the home was merely cumulative of evidence the officers already had.
State v. Wissing, ___ Kan.App.2d ___, ___ P.3d ____ (No. 115235, filed 07/29/16). A Hutchinson Sergeant saw a man riding a moped and recognized him from previous contacts as Jonathan Wissing. Believing that active warrants for Wissing were outstanding, the Sergeant stopped him. The Sergeant testified that he saw Wissing look inside a wallet and put it in his pocket. The Sergeant placed Wissing under arrest for the outstanding warrants and handcuffed Wissing's hands in front of his body. Wissing asked the Sergeant if he could go inside his nearby house to tell his mother he was going to jail. The Sergeant agreed and walked into the house with Wissing. While Wissing was talking with his mother, the Sergeant saw Wissing remove a wallet from his back pocket and place it on a dresser. The Sergeant then retrieved Wissing's wallet and asked Wissing if his ID was in it. When Wissing responded that it was, the officer opened the wallet and found a small plastic bag containing a white crystalline substance that the officer believed to be methamphetamine. The officer seized the plastic bag. The district court suprressed the evidence. The district court held that Wissing placed the wallet "out of his control in a safe place" as opposed to "throw[ing] it out of a car window," apparently finding some middle ground between the wallet being within Wissing's control and it being abandoned. The Court of Appeals held that was irrelevant. It found, based on a categorical approach, that the officer had the authority to search the wallet incident to Wissing's arrest.
Shultz v. Buchanan, ___ F.3d ___ (8th Cir. No. 15-1854, filed 07/19/16). An officer was dispatched on a disturbance and while questioning the suspect, Shultz, outside, he repeatedly had to instruct Shultz, whom he suspected had been drinking, to calm down. Shultz eventually confirmed he was not under arrest and stormed inside. The officer asked Shultz's wife, Jennifer, to go inside and ask Shultz to come back out. When she went inside, the officer heard Shultz scream, saw his children run out of the house, and heard a "thud." The officer then entered the house and asked Shultz to come outside. When Shultz declined, the officer followed him upstairs with his Taser drawn. According to Shultz, the officer said "You asked for it," and deployed his Taser three times. Shultz suffered only minor injuries, and was eventually arrested. He filed suit against the officer under 42 U.S.C. § 1983 for unlawfully entering his home and using excessive force. The district court granted the officer summary judgment on qualified immunity grounds. Shultz appealed to the Eighth Circuit. On the unlawful entry claim, the Eighth Circuit noted that an officer may enter a home without a warrant to provide emergency assistance to an injured person or to protect a person from imminent injury. The court also explained that an officer need not have "ironclad proof of a likely serious, life-threatening injury" to invoke the "exigent circumstances" exception. The Eighth Circuit concluded that an officer in these circumstances would have reasonable grounds to believe someone in Shultz's home was in need of immediate assistance based on hearing Shultz scream, seeing children run out of the house, and hearing a loud "thud." Consequently, the court held the officer had not unlawfully entered Shultz's home. With respect to Shultz's excessive force claim, the Eighth Circuit assumed, without deciding, that there was at least a question of fact as to whether the officer's use of his Taser was unreasonable. Regardless, the court classified Shultz's injuries as de minimus, and held that it had not been clearly established in the Eighth Circuit as of March 2011 that an officer violates an arrestee's rights by applying force that causes only de minimus injuries. Because the court found that the officer had not violated Shultz's clearly established rights, it held the officer was also entitled to qualified immunity on Shultz's excessive force claim.
Smith v. City of Chandler, No. 14-15969 (9th Cir. July 18, 2016). The Ninth Circuit has reversed an Arizona federal district court, finding that an officer who fired beanbag rounds at a compliant detainee from close range was on notice that such action violated Fourth Amendment standards. Officers with their guns drawn entered Brandon Smith's patio area, with knowledge that he was emotionally disturbed and suicidal. They began issuing commands to Smith. Smith thought he heard an officer say "stand up." He had a knife cradled in his arms pointed at himself. He was eight feet from the nearest officer, who was pointing a gun at him. When Smith stood up another officer shot Smith with two beanbag rounds. Smith filed an excessive force claim, and the district court granted summary judgment to the officers, ordering Smith to pay attorney's fees and non-taxable costs. Smith appealed successfully. The Ninth Circuit determined, taking the facts in a light most favorable to Smith, that material facts were outstanding as to what Smith heard with regard to the commands-making summary judgment inappropriate. As for the officer's alternative argument that, no matter the material facts, he was entitled to qualified immunity for shooting the beanbag rounds, the Court denied such relief. It cited Circuit precedent clearly establishing that under these facts it was unreasonable to discharge beanbag rounds at close range against Smith. Given these reversals, the Circuit also vacated the award of fees and costs and remanded the case.
Goad v. Town of Meeker, ___ F.3d ___ (10th Cir. No. 15-6085 , filed 07/01/16). James Goad, a pawn shop operator, complained about a police officer that would not move his car, which was blocking the entrance to Goad's pawn shop. One year later, following additional conflict between Goad and law enforcement, the Town's Chief of Police (Chief) obtained a warrant for Goad's arrest based on false statements Goad made in the earlier complaint that he owned the pawn shop in question. Goad voluntarily turned himself in. The charges were ultimately dropped, but Goad sued the Town and the Chief under a spectrum of counts including First Amendment retaliation and violation of his Fourth Amendment rights. The latter was based on Goad's contention that the arrest warrant should not have been issued because the Chief's warrant application lacked sufficient grounds. The district court granted summary judgment to defendants. On appeal, the Tenth Circuit affirmed. The relevant question was not whether the four corners of the warrant application provided a sufficient factual basis for issuance of a warrant; the question was whether there was probable cause to support arresting Goad. Therefore, the court was permitted to consider additional information known to the Chief which contributed to the finding of probable cause. Apart from the statement in the warrant application that official records did not show Goad to be the pawn shop owner, the Chief had also obtained information that Goad was a convicted felon who had served time for receiving stolen property-a crime which would clearly disqualify Goad from ownership of a pawn shop. That additional information supported probable cause to arrest Goad.
United States v. Matish III, ___ F.Supp.2d ___ (U.S.D.C. E.D. Va., No. 4:16cr16, filed 06/23/16). This case involves a child pornography trafficking site odiously named Playpen that had been accessible, among other means, through "The Onion Router" (Tor), a software project that is meant to hide the location and usage of any user from those conducting surveillance and traffic analysis. Tor had been used to traffic child porn. The government took over a Tor server and planted itself there. Instead of shutting down the server, it decided to hack over 1,000 computers that accessed the Tor server and grabbed not only IP addresses, but also MAC addresses, which identify the hosts' names and the operating systems of the machines. Matish sought to suppress all of the information the FBI collected as fruit of the poisonous tree for lack of a valid search warrant. Federal district judge Henry Coke Morgan Jr. ruled that because of the "virtual certainty that computers accessing the Internet can--and eventually will--be hacked," no warrant is needed to access the contents of one's computer when accessing a Tor server. He held there was probable cause for both warrants (to deploy the NIT software on the Tor server and the later warrant for Matish's home and computer).
Utah v. Strieff, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 14-1373, filed 06/20/16). Narcotics detective Douglas Fackrell conducted surveillance on a South Salt Lake City residence based on an anonymous tip about drug activity. The number of people he observed making brief visits to the house over the course of a week made him suspicious that the occupants were dealing drugs. After observing respondent Edward Strieff leave the residence, Officer Fackrell detained Strieff at a nearby parking lot, identifying himself and asking Strieff what he was doing at the house. He then requested Strieff’s identification and relayed the information to a police dispatcher, who informed him that Strieff had an outstanding arrest warrant for a traffic violation. Officer Fackrell arrested Strieff, searched him, and found methamphetamine and drug paraphernalia. Strieff moved to suppress the evidence, arguing that it was derived from an unlawful investigatory stop. The trial court denied the motion, and the Utah Court of Appeals affirmed. The Utah Supreme Court reversed, however, and ordered the evidence suppressed. The United States Supreme Court reversed, expressing doubt on cases such as State v. Moralez, 297 Kan. 397, 415, 300 P. 3d 1090, 1102 (2013) (assigning little significance to the discovery of the warrant). In this case, there was no flagrant police misconduct. Therefore, Officer Fackrell’s discovery of a valid, pre-existing, and untainted arrest warrant attenuated the connection between the unconstitutional investigatory stop and the evidence seized incident to a lawful arrest.
Mayfield v. Bethards, ___ F.3d ___ (10th Cir. No. 15-3074, filed 06/20/16/16). Animals, including dogs, constitute personal property protected against unreasonable searches and seizures. The Mayfields may proceed to trial in their suit against a Harvey County sheriff’s deputy who is accused of entering the family’s front yard without a warrant and killing their dog. They Mayfields’ alleged that Deputy Jim Bethards and his partner entered their property on July 13, 2014, without a warrant with the intention of killing their two dogs, shooting at both dogs and killing their white Malamute Husky, Majka. Their complaint cited a witness who said neither dog acted aggressively. The lawsuit contends Bethards shot Majka three times on the front porch, and then he and his partner unsuccessfully searched for the family’s brown dog, Suka, who had fled to the back of the house and disappeared into a wooded section of the property. The deputies are then accused of moving Majka’s body and trying to hide it in a row of trees. The deputy had contended in a police report that killing the dog was reasonable because he thought Majka had attacked livestock and believed Kansas law allows anyone to kill a dog reported to have done so. Bethards had asked a district judge dismiss the lawsuit, arguing dogs are not subject to Fourth Amendment protection and that killing Majka was reasonable under the circumstances as a matter of law. The district judge denied that request, and the three-judge appellate panel agreed with the lower court’s rejection of Bethards’ argument that he had qualified immunity as a government official that protects him from suit for civil damages. The federal appeals court also noted the Kansas Supreme Court has ruled in another case that it is the burden of a defendant to show he was justified in shooting a dog, and that the question of whether a livestock owner in “hot pursuit” enters a dog owner’s property “with consent or implied consent” is a question for a jury to decide. The Mayfields told Harvey County Sheriff T. Walton that the accusation their dog had mauled a neighbor’s livestock a year earlier was a case of mistaken identity, and that the offending dog had been shot by the livestock owner and later put down as a result of those shotgun wounds, the court noted.
United States v. Aaron Graham, ___ F.3d ___ (4th Cir. No. 12-4569, en banc, filed 05/31/16). A federal appellate court in Virginia ruled 12-3 that no warrant is needed to obtain cell phone location data because consumers have no reasonable expectation of privacy in information they willingly surrender to cell phone companies."Supreme Court precedent mandates this conclusion. For the Court has long held that an individual enjoys no Fourth Amendment protection 'in information he voluntarily turns over to [a] third part[y].'" The issue may still make its way to the Supreme Court eventually and some experts expect the strong dissent in this case and others like it indicate there is hope yet for privacy.
Perea v. Baca, ___ F.3d ___ (10th Cir. No. 14-2214, filed 04/04/16). Albuquerque officers responded to a check the welfare call from a mother who said her son, Perea, was on "very bad drugs" and that she was afraid of what he might do. Prior to their arrival, Perea left on a bicycle. Officers located him and used their patrol cars to force him to pedal into a parking lot. They attempted to subdue him and he struggled. Officers used a taser initially in probe mode, then in drive stun mode. They discharged the taser ten times in less than two minutes. Perea died. The Court of Appeals first noted that the repeated TASER™ deployments against Perea after he was subdued was a violation of the 4th Amendment as excessive force. In applying the 3 factor Graham test, the court noted that pedaling through a stop sign, Perea's only offense at the outset was minor. Secondly, the officers did not indicate that Perea posed a threat to anyone but himself prior to the interaction. The court indicated that the third factor was an issue because of Perea's resistance to the officers however the court noted that the officers' response to that resistance had to be "reasonable and proportionate given Perea's resistance." The court held that "Perea's resistance (thrashing and swinging a crucifix) did not justify the officers' severe response." While the court acknowledged that some force was justified during Perea's initial resistance, a jury could find that the continued use of the TASER™ once Perea was subdued was unreasonable. The court said:
[T]he situation was not static over the course of the ten taserings. When Officer Jaramillo first engaged the Taser, he shot Mr. Perea in the chest. At the time, Mr. Perea was trying to ward off the officers with his crucifix. . . . At some point, however, Mr. Perea fell and the officers pushed him to the ground with his arms under his body. One officer was on 'the upper part of his body' while the second officer was on his legs. Officer Jaramillo continued to taser Mr. Perea in the back again and again until he pulled his arms out and handcuffed both hands.
The court held that even if force was justified during the initial deployments, the force was not justified once Perea was subdued. Having found a violation of the 4th Amendment, the court went on to find that the law was clearly established at the time and thus the officers were also denied Qualified Immunity.
State v. Mullen,___ Kan. ___, ___ P.3d ___ (No. 110468, filed 04/22/16, affirming 51 Kan.App.2d 514, 348 P.3d 619 (2015)). A United States Postal Inspector in Kansas City, Missouri, noticed a suspicious package. The inspector contacted the Shawnee Police Department and informed the police he had a suspected drug package addressed to a house on Meadowsweet Lane, Shawnee, Kansas, for delivery that a police K-9 unit had hit on. A detective obtained an anticipatory search warrant for the house on Meadowsweet Lane from a magistrate judge. The anticipatory search warrant required a controlled delivery of the suspected drug package to the house before it granted authority to enter the house. Once the package was delivered, officers entered, and Mullen, post-Miranda, admitted he knew it contained marijuana (2 pounds). Mullen was supposed to receive the package, not open it, then give it to someone else. Mullen argued a controlled delivery required a hand-to-hand delivery between the inspector and Mullen, and not the inspector leaving the package on the steps for someone to retrieve it later. The Court of Appeals disagreed, holding the triggering event for the anticipatory warrant had occurred. And, although Mullen agreed to a bench trial on stipulated facts, and the stipulation contained a waiver of jury trial, the district court failed to personally advise Mullen of his right to a jury trial, and Mullen did not personally waive his right to a jury trial on the record. Since the record is silent on both points, the court reversed his conviction for possession of marijuana with intent to distribute and remand the case for further proceedings for the district court to explain on the record to Mullen his right to a jury trial. The Supreme Court affirmed.
United States v. Mendoza, ___ F.3d ___ (10th Cir. No. 15-7042, filed 03/25/16), 2016 U.S. App. LEXIS 5597 (10th Cir. Okla. Mar. 25, 2016))(summary by FLETC training divison). A state trooper stopped Mendoza for speeding. Mendoza drove a half mile before pulling over, and the trooper noticed food and trash in the passenger seat, suggesting that Mendoza had been trying to avoid stopping on the way to his destination. In addition, Mendoza appeared to be nervous and was visibly shaking when he handed his driver's license to the trooper. After the trooper recognized the car was a rental, he asked Mendoza for the rental agreement, but Mendoza mistakenly gave him his insurance document before handing him the rental agreement. When the trooper asked Mendoza about his travel plans, he realized what Mendoza told him was inconsistent with information contained in the rental agreement. The trooper issued Mendoza a written warning, and as Mendoza was preparing to leave, the trooper asked him, "Can I ask you a question?" Mendoza agreed to speak with the trooper and eventually gave the trooper consent to search his car. The trooper asked Mendoza to wait in his patrol car and told him to honk the horn if he wanted the trooper to stop the search. In the meantime, a second trooper arrived to assist with the search. The troopers found two ice chests in Mendoza's car, one in the trunk and one in the back seat. They opened the ice chest from the trunk and found that it contained wrapped fish and shrimp. The troopers also noticed the chest showed signs of tampering. First, one of the hinges was broken and the lip of the inner lining was partially separated from the outer shell. Second, one screw was missing while several others looked as if they had been taken in and out multiple times. In addition, the troopers knew that smugglers sometimes use seafood to mask the presence of drugs. After removing the seafood and placing it on the ground, one of the troopers used an upholstery tool to pry the inner and outer liners farther apart. As he separated the liners, the trooper saw that the lining contained spray foam that did not originally come with the ice chest. When he pried the lining farther apart, the trooper saw the corner of a black, taped bundle. The trooper had encountered similar bundles in the past containing drugs. The trooper tore open the outer lining of the chest and found 13 bundles containing marijuana. The trooper then dismantled the second ice chest in a similar manner and found two bundles containing methamphetamine. Mendoza did not honk the horn at any time during the search. The government charged Mendoza with possession with intent to distribute methamphetamine and marijuana. Mendoza argued the evidence seized from the ice chests should have been suppressed. First, Mendoza argued his consent to search was not valid because it was obtained after the trooper unlawfully prolonged the duration of the traffic stop. The court disagreed. The court found the trooper established reasonable suspicion during the stop to believe that Mendoza might be involved in criminal activity. Among other things, the court noted that Mendoza drove for a half mile before pulling over, he was extremely nervous during the stop, and his travel plans did were not consistent with information on the car's rental agreement. As a result, the court held Mendoza's detention up to the consent search was lawful. Second, Mendoza argued the trooper exceeded the scope of his consent by removing the packaged seafood from the first ice chest and prying open the lining. Again, the court disagreed. A general consent to search a car includes closed containers located within the vehicle. Here, Mendoza consented to a general search of his car without any limitations or restrictions. In addition, Mendoza had been told that he could stop the troopers' search at any time by honking the horn in the patrol car, and although he had a clear view of the troopers' actions, he never did. Finally, the trooper's further separation of the already separated inner and outer lining of the ice chest did not permanently damage it. Once the trooper saw the black bundle in the lining of the first ice chest, he had probable cause to search the chest regardless of the scope of Mendoza's consent. Third, Mendoza argue the troopers violated the Fourth Amendment by destroying the second ice chest during the search without probable cause that it contained evidence. The court disagreed, holding that it was reasonable for the troopers to dismantle the second ice chest after they had found drugs in the modified lining of the first ice chest.
United States v. Carloss, ___ F.3d ___ (10th Cir. No. 13-7082, filed 03/11/16). ATF received several tips that Carloss, a previously convicted felon, was unlawfully in possession of a firearm, possibly a machine gun, and was selling methamphetamine. An ATF agency and a Tahlequah, Oklahoma police officer went to the residence where Carloss was staying to conduct a knock and talk. There were several "No Trespassing" signs placed in the yard and on the front door. After several minutes of knocking, a female exited the residence and met with officers in a side yard. Carloss joined shortly therafter. Neither pointed out the "No Trespassing" signs to the officers or ask the officers to leave. When asked if officers could enter the residence to look for a gun, Carloss said he would have to ask the owner. Officers asked if they could enter with Carloss and he said yes. In Carloss's room, the officers saw drug paraphernalia and a white powder residue that appeared to be methamphetamine. The owner eventually declined to let the officers search the house and instead asked the officers to leave. They did so but, based on the drug paraphernalia the officers saw in Carloss's room, they obtained a warrant to return and search the house. During the search pursuant to that warrant, officers found "multiple methamphetamine labs" and lab components, a loaded shotgun, two blasting caps, ammunition, and other drug paraphernalia. Carloss alleged that entry violated the Fourth Amendment. The Circuit disagreed, distinguishing Florida v. Jardines. The court of appeals also noted that the agents in Carloss’ case did not take anything to enhance their senses or tell them what was taking place inside the home, unlike the canine in Jardines. The "No Trespassing" signs alone do not have the talismanic quality Carloss attributes to them.
Yates v. Terry, ___ F.3d ___ (4th Cir. No. 15-1555, filed 03/31/15). Brian Yates, was driving on a highway, followed by his mother and brother in another car behind him. Yates passed by defendant-officer Christopher Blair Terry who trailed Yates and eventually pulled him over at a gas station. Terry demanded Yates' driver license. When Yates told Terry that he had no license, but did have his military ID, Terry forced Yates out of the car and ordered Yates to put his hands on the car. Yates complied. By now, Yates' brother and mother had arrived. Yates turned his head to look at them and Terry tased Yates who fell to the ground. Yates' brother asked Terry why he was tasing Yates. Terry responded negatively and tased Yates again. Yates made no attempt to flee but instead grabbed his cell phone and threw it to his brother, telling him to call Terry's correctional officer. Terry tased Yates a third time. Meanwhile, Mrs. Yates fainted. Yates sued and the district court eventually found that Terry had used excessive force. On appeal, the Fourth Circuit held the force was excessive. It generally found that traffic violations alone should not support the use of a "significant level of force" (such as a taser.) Second, Yates was not an objective threat to either Terry or the public. He was unarmed and lying on the ground. Third, he was also compliant to Terry's orders and was not actively resisting arrest. Even to someone not educated in civil rights law, it is clear that some right was being violated. No objective person could have possibly believed that under those circumstances that tasering someone was protected action under qualified immunity.
State v. Ryce, 303 Kan. 899, ___ P.3d ___ (No. 111698, filed 02/26/15). Ryce was driving a car down a street in reverse. Upon stopping him, the officer noticed the usual indicators of alcohol impairment. Ryce refused breath testing and was prosecuted for criminal refusal. Ryce had four prior DUI convictions. He moved to dismiss alleging the state could not penalize him for withdrawing his implied consent (as a condition of having a suspended driver's license). The district court agreed and dismissed the charges. The Supreme Court affirmed. The ultimate question is whether, when a driver exercises the constitutional right to withdraw consent, Kansas may criminally punish the individual for this choice under the criminal refusal statute, K.S.A. 2014 Supp. 8-1025. We conclude it cannot. Applying the Due Process Clause of the Fourteenth Amendment to the United States Constitution, we recognize Kansas has compelling interests in combating drunk driving and prosecuting DUI offenders. Nevertheless, by criminally punishing a driver's withdrawal of consent, 8-1025 infringes on fundamental rights arising under the Fourth Amendment. K.S.A. 2014 Supp. 8-1025, therefore, must withstand strict scrutiny by being narrowly tailored to serve the State's interests. We hold that K.S.A. 2014 Supp. 8-1025 does not meet this test and is facially unconstitutional. See also State v. Wilson, No. 112,009 (driver stopped for improper turn and refused breath test; officer obtained a warrant and blood tested at 0.180), State v. Nece, 303 Kan. 888, (No. 111,401 (driver stopped for defective headlight and blew 0.162; court held DC-70 language defective and should have resulted in suppression), and State v. Wycoff, No. 110,393 (stopped for squealing tires and improper turn; also charged for no ignition interlock device). NOTE: The Court granted a motion for rehearing/modification on 09/26/19. To be argued again on 12/12/16 at 0900.
State v. Gray, Shawnee County Case No. 2014TR5423, filed 09/23/15. Judge Ossman held the criminal refusal statute, K.S.A. 8-1025(b)(1)(A), is unconstitutional. Ossman ruled the statute violates the defendant’s Fifth Amendment right against self-incrimination and the due process clause of the 14th Amendment. Ossman also invalidated the law based on the "unconstiutional conditions doctrine." Ossmann indicated that in granting the request for dismissal, he adopted reasoning put forth last year by Shawnee County District Judge Marc Braun in State v. Wilson, 2013CR1900, filed 5/27/14, where Braun ruled that the Kansas law, which was enacted in 2012 and criminalized the refusal to submit to testing, was unconstitutional. In Braun's case, the officer obtained a search warrant after the defendant refused and the blood test showed a 0.180. Ossmann’s ruling said that while the Kansas Supreme Court heard arguments on similar cases on May 5, 2015, it has rendered no decision in those cases.
Pauly v. White, 814 F. 3d 1060 (10th Cir. No. 14-2035, filed 02/09/16), vacated in a per curium decision, Pauly v. White, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 16-67, filed 01/09/17). New Mexico officers were attempting to locate Daniel Pauly after a nighttime road rage situation. When officers arrived at Pauly's house, they attempted to locate his vehicle without being seen, using their flashlights only intermittently. Pauly and his brother saw the people with flashlights sneaking around and yelled "who are you?" The officers allegedly said, "come out or we are coming in." Pauly and his brother allegedly thought they were intruders from the earlier road rage situation, and armed themselves, shouting "we have guns." Another officer arrived about this time and took cover about 50' away from the house. Pauly fired warning shots out the back door. Then Pauly's brother opened a front window and pointed a handgun in the direction of the newly arrived officer, White, who shot and killed Pauly's brother. Pauly then sued, claiming excessive force. The officers appealed from denial of summary judgment. The Circuit affirmed, holding trier of fact could conclude that the officers' conduct preceding the shooting -- demanding entry into the Paulys' home without identifying themselves -- would reasonably have caused the brothers to arm themselves in defense of their home, as permitted by state law. It also held that Officer White's actions were objectively unreasonable because: (1) the officers were investigating a minor crime, (2) Officer White did not order Pauly to drop his weapon, (3) Officer White was fifty feet away when he shot, (4) both Officer White and Officer Mariscal were behind cover when Pauly opened the window, and (5) a jury could find that Officer White's belief that Officer Truesdale had been shot was unreasonable. The court also found that a reasonable jury could find that Officer White had violated clearly established law by (1) using deadly force even though he was not in danger, and that (2) the circumstances required Officer White to warn Pauly to drop his weapon. Mortiz dissented, and would have granted the officers immunity.
United States v. Houston, ___ F.3d ___ (6th Cir. No. 14-5800, filed 02/08/15). The government placed pole cameras on top of a public utility pole located about 200 years away from Houston's rural farm back yard, and during ten weeks of video capture the government obtained footage showing that Houston, a convicted felon, possessed firearms. Although this ten-week surveillance was conducted without a warrant, the use of the pole camera did not violate Houston’s reasonable expectations of privacy because the camera recorded the same view of the farm as that enjoyed by passersby on public roads.
United States v. Fager, ___ F.3d ___ (10th Cir. No. 15-3104, filed 01/21/16)(2016 U.S. App. LEXIS 995 (10th Cir. Kan. January 21, 2016). Topeka officer Dobler stopped Fager’s car around 8:00 p.m. for a turn signal violation near an apartment complex in a high-crime area. The officer approached the passenger-side of the car and encountered Fager, the driver, and Walls, who was in the front passenger’s seat. The officer noticed Fager’s eyes were watery, his speech was soft, and an unopened can of beer sat in the center console of the vehicle. In addition, Walls continually leaned forward in a way that he made the officer believe that he was trying to obstruct the officer’s view of Fager. After the officer received identification from both men, he discovered that Walls had several outstanding arrest warrants, but he was not told the nature of the warrants. After a back-up officer arrived, the original officer directed Fager to exit his vehicle. After the officer determined Fager was not impaired, he asked Fager for consent to search his vehicle. Fager consented. Because it was cold, the officer gave Fager the option to sit inside the officer’s patrol car instead of standing outside. Fager agreed. The officer then told Fager he wanted to pat him down to make sure Fager did not possess any weapons. Fager did not say anything, but he positioned himself for a pat-down. The officer conducted a pat-down search and found a firearm in the waistband of Fager’s pants. The officer arrested Fager, who was charged with being a felon in possession of a firearm. Fager filed a motion to suppress the firearm, arguing the officer’s pat-down was not supported by reasonable suspicion that Fager was armed and dangerous. The court disagreed. First, while conducting their search of Fager’s car, the officers would have had to turn their backs on Fager. The court noted that Eight Circuit case law had held that when an officer must “turn his or her back to a defendant,” little is required beyond this concern to support the officer’s reasonable suspicion. Second, Walls, a man with several outstanding arrest warrants was still at the scene, and it was reasonable for the officer to believe that Fager and Wall could have mounted a joint attack against the officers. Third, Walls had been acting suspiciously when the officer initially approached the vehicle by blocking his view of Fager. Finally, the stop occurred in a high-crime area at nighttime. Under these circumstances, the court concluded the officer was justified in frisking Fager.
United States v. Rarick, ___ F.3d ___ (6th Cir. No. 14-4212, filed 01/07/16, unpublished). Officer properly seized and searched, pursuant to a warrant, a cell phone that may have contained evidence of the crime of obstruction. Therefore, the child porn that was inadvertently discovered during the search should not be excluded. An officer stopped Rarick on suspicion of a suspended license. During the stop, Rarick became argumentative: he challenged the officer's authority to ask his name or run his license plate, and he refused to produce his driver's license, insurance information, or vehicle registration. At some point, Rarick removed his smartphone from his pocket, held it up, approached the officer, and stated that he was recording her. After some more back-and-forth, the officer seized the phone and got a warrant to search it.
Estate of Samuel DuBose v. University of Cincinnati, Court and case No. unknown. Profiled on PoliceMag.com 1/19/16. The family of a man shot and killed by a University of Cincinnati police officer who pulled him over for not having a front license plate has reached a $5.3 million settlement with the school, the family and university announced Monday. The deal gives the family of Samuel DuBose $4.85 million and promises free undergraduate tuition for his 12 children who range in age from 4 to 23. The educational component of the settlement is valued at approximately $500,000, WLWT TV reports. Additionally, UC will erect a memorial to DuBose on campus and UC President Santa Ono will also issue an apology to the family for the loss of DuBose. DuBose, 43, was shot and killed behind the wheel of his car on July 19 after Officer Ray Tensing stopped him near campus for missing a front license plate which is required by Ohio law. Tensing is charged with murder and voluntary manslaughter. He has pleaded not guilty.
Armstrong v. Village of Pinehurst, ___ F.3d ___ (4th Cir. No. 15-1191, filed 01/11/16). The Fourth Circuit held that defendant officers used excessive force when drive-stunning five times an arresteee who later died, but were entitled to qualified immunity because the law was not clearly established. Armstrong had mental issues and escaped from a hospital after being declared a danger to himself. The Pinehurst police made contact and tried to negotiate with Armstrong, but he was disconnected with reality and eventually sat down and wrapped himself around a four-by-four post that was supporting a nearby stop sign. The officers tried to pry Armstrong’s arms and legs off of the post, but he was wrapped too tightly and would not budge. They drive stunned him five separate times over a period of approximately two minutes and eventually got him in handcuffs. They then left him facedown in the grass with his hands cuffed behind his back and his legs shackled. He died. The entire encounter had only lasted about six minutes. The Court held that tasing a non-criminal, mentally ill individual, who seconds before had been conversational, was not a proportional response to the resistance the officers encounterd and violated the Fourth Amendment. However, at the time this happened in May 2007, it was not clearly established that using a taser repeatedly on a suspect actively resisting arrest and refusing to be handcuffed amounted to excessive force.
Kansas v. Cheever, ___ Kan. ___, ___ P.3d ___ (No. 99988, filed 07/22/16). After remand from the United States Supreme Court, the Kansas Supreme Court affirms the capital murder conviction of Cheever for killing Greenwood County (Kan.) Matt Samuels on Jan. 19, 2005. See Cheever case below for more information. "[T]he appropriate scope of rebuttal in this case must take into account not just the testimony presented by Cheever's expert on the topic of his methamphetamine intoxication, but also Cheever's own testimony concerning his past use of the drug and the events leading to and constituting the crimes. Much of Welner's testimony concerning details of the crimes, and Cheever's actions constituting them, was responsive to Cheever's own testimony. Having taken the stand, Cheever opened himself to rebuttal testimony just as he opened himself to cross-examination concerning both the substance of his testimony and his credibility as a witness." Johnson, J. dissents, on the basis that the death penalty violates the 8th Amendment.
Case name and no. unknown. Story profiled on CNN on 03/08/16. Baltimore police Officer William Porter can be compelled to testify under immunity against fellow officers charged in connection with Freddie Gray's death, Maryland's appeals court ruled Tuesday
Bloom v. Pompa, ___ F.3d ___ (10th Cir. No. 15-5098, filed July 6, 2016). The Tenth Circuit considered whether a supervising officer was entitled to qualified immunity for ordering a pretrial detainee to be moved to a cell with an inmate the supervisor knew to be violent. In December 2011, Billy Bloom, a pretrial detainee in the Creek County Criminal Justice Center, was involved in an altercation with another inmate. As a result of the incident, shift supervisor Chad Pompa ordered Bloom to be transferred from the holding unit to a segregation cell occupied by Shawn Sexton, an inmate that jail personnel knew to be violent. As officers approached, Sexton warned that he did not want another inmate in his cell and that he would kill Bloom if placed in his cell. When the officers opened the door, Sexton immediately began attacking Bloom, causing severe injuries. Bloom sued Pompa under 42 U.S.C. §1983, asserting violations of the Fourteenth and Eighth amendments. When the district court denied Pompa's motion for summary judgment on qualified immunity grounds, he filed an interlocutory appeal to the Tenth Circuit. On appeal, the Tenth Circuit reiterated that its review from an order denying qualified immunity was limited to (1) whether the facts relied on by the district court were sufficient to show a legal violation, and (2) whether the law was clearly established at the time of the violation. With respect to Bloom's Fourteenth Amendment due process claim, the district court concluded that a reasonable jury could find that Pompa intended to punish Bloom by deliberately placing him in a cell with a violent inmate. The Tenth Circuit affirmed, noting that the facts as reported by the district court were sufficient to show a potential violation and that it was clearly established as of the date of violation that the State may not punish pretrial detainees. Turning to Bloom's Eighth Amendment claim, the Tenth Circuit explained that under the Eighth Amendment, prison official have a duty to provide humane conditions of confinement, including taking reasonable measures to guarantee the safety of inmates. The court reiterated that it lacked jurisdiction to examine the adequacy of the evidence relied on by the district court, but that evidence suggesting Pompa was aware of Sexton's violent temperament was sufficient to trigger liability. The Tenth Circuit affirmed the district court's denial of qualified immunity on both claims.
State v. Carr, 577 U.S. ___, 300 Kan. 1, 185, 331 P.3d 544 (2014), rev'd and remanded on other grounds 577 U.S. ___, 136 S. Ct. 633, 193 L. Ed. 2d 535 (2016);(No. 14-449. filed 01/20/16). Reverses Kansas Supreme Court rulings setting aside death sentences against Sidney Gleason and the Carr brothers. The Court holds the Eighth Amendment does not require capital-sentencing courts to instruct a jury that mitigating circumstances need not be proved beyond a reasonable doubt. Also holds that the Constitution did not require severance of the Carrs’ joint sentencing proceedings. The Eighth Amendment is inapposite when a defendant’s claim is, at bottom, that evidence was improperly admitted at a capital-sentencing proceeding. The question is whether the allegedly improper evidence “so infected the sentencing proceeding with unfairness as to render the jury’s imposition of the death penalty a denial of due process.” In light of all the evidence presented at the guilt and penalty phases relevant to the jury’s sentencing determination, the contention that the admission of mitigating evidence by one Carr brother could have “so infected” the jury’s consideration of the other’s sentence as to amount to a denial of due process is beyond the pale.
Justice Department v. County of Denver - Case No. unknown. Profiled int eh Denver Post 11/21/16. The Denver Sheriff Department has run afoul of the U.S. Department of Justice because it made U.S. citizenship a job requirement for its deputies during a hiring spree in 2015 and early 2016. The sheriff’s department will pay a $10,000 fine and will have to sort through old applications to identify people who were eliminated from consideration because they were not U.S. citizens, according to a news release from the justice department.
Dawson v. Coffman, ___ F.3d ___ (10th Cir. No. 15-1365, filed 06/08/16). Where a criminal defendant unsuccessfully argued diminished capacity due to intoxication, the state's subsequent loss of his blood and urine evidence-which had not been used in his trial-did not require a judicial remedy, and denial of that remedy did not violate his Due Process or Equal Protection rights. James Dawson was charged with a variety of violent crimes, for which he defended himself by arguing he had diminished capacity based on being intoxicated and suffering drug-related impairment. Given this defense, the trial court ordered urine and blood samples be drawn from Mr. Dawson. The samples were never tested and a jury found him guilty of second-degree murder, attempted second-degree murder, second-degree assault, and commission of a crime of violence. His urine and blood samples were ultimately lost or destroyed over time. Subsequent to his conviction Colorado enacted Colo. Rev. Stat. § 1-1-414(b) which authorizes judicial remedies when law enforcement negligently loses or destroys biological evidence. Mr. Dawson filed suit in state court alleging he was a victim of the state negligently losing or destroying his urine and blood samples, and seeking relief under the new law. The state court denied his claim, holding the law did not apply to those defending on the basis of diminished capacity and that the law only applied to DNA evidence. This prompted an appeal to the Tenth Circuit, wherein Mr. Dawson argued the limitations in the state law denied him due process and equal protection under federal law. The Circuit Court agreed with the federal district court's holding that statutory limitations on relief for some individuals did not violate federal law. Plainly put, the legislature may set rational limitations on its authorization of a judicial remedy and the limitations in § 1-1-414(b) - that only defendants arguing actual innocence and the loss of DNA evidence, not those arguing diminished capacity and urine or blood evidence may utilize the new law - were rationally based and thus not a violation of federal due process or equal protection law.
Hodes & Nauser v. Schmidt, ___ Kan.App.2d ___, ___ P.3d ____ (No. 114153, filed 01/22/16). The Court of Appeals, in a 7-7 split, affirmed a district court ruling enjoining enforcement of the Kansas Unborn Child Protection from Dismemberment Abortion Act, K.S.A. 2015 Supp. 65-6741. The district court based its order on provisions of the Kansas Constitution Bill of Rights, concluding that they provide the same right to abortion as the Due Process Clause of the Fourteenth Amendment to the United States Constitution.
Adair v. City of Muskogee, #15-7067, 2016 U.S. App. Lexis 9636 (10th Cir. No 15-7067, filed 05/26/16). A firefighter injured his back during a training exercise. A functional capacity evaluation limited his lifting capabilities. After two years on paid leave, he received a workers' comp award saying the limit was permanent. He retired, but argued that his retirement was a constructive discharge in violation of the Americans with Disabilities Act of 1990 (ADA), with him forced to choose between retirement and termination. Rejecting the claim, the court said that "Even if the City regarded Adair as having an impairment, Adair cannot show that he was qualified to meet the physical demands required of firefighters or that the City could reasonably accommodate his lifting restrictions."
State v. Herndon, ___ Kan.App.2d ___, ___ P.3d ____ (No. 112479, filed 07/15/16). During a road rage incident, Herndon shot a 22 rifle at victim's truck. Unbeknownst to Herndon, the victim's 9 year old son was in the truck. The Court of Appeals held the state failed its burden of proving aggravated child endangerment. "In the case before us, there is no evidence that Herndon was aware of the presence of Fry's child when he shot at the pickup truck. In the context of our aggravated child endangerment statute, K.S.A. 2015 Supp. 21-5601(b)(1), and the definition of recklessness found in K.S.A. 2015 Supp. 21- 5202(j), we conclude that the State failed to establish that Herndon consciously disregarded a substantial risk that his conduct would place Fry's child in peril. Accordingly, we must set aside this conviction and remand to the district court to vacate Herndon's sentence for this conviction."
State v. Lloyd, ___ Kan.App.2d ___, ___ P.3d ____ (No. 114389, filed 06/17/16/16). Lloyd was on probation. The judge revoked him after he was bound over on a new kidnapping charge. The Court of Appeals reversed the revocation. The probable cause standard of proof required to bind a defendant over for trial is a lesser burden of proof than the preponderance of the evidence standard needed to establish a probation violation, and a district court errs when it relies solely on a probable cause finding from a preliminary hearing to find a defendant in violation of his or her conditions of probation.
Epstein v. Epstein, ___ F.3d ___ (7th Cir. No. 15-2076, filed 12/14/16). Barry Epstein sued his estranged wife, Paula, under 18 U.S.C. § 2520, alleging that she violated the federal Wiretapping and Electronic Surveillance Act by intercepting his emails. Barry alleges that Paula violated the Wiretap Act by surreptitiously placing an auto-forwarding “rule” on his email accounts that automatically forwarded the messages on his email client to her. He also claims that Paula's divorce lawyer violated the Act by “disclosing” the intercepted emails in response to his discovery request. The district judge dismissed the suit on the pleadings. The 7th Circuit affirmed in part and reversed in part. The complaint doesn't state a Wiretap Act claim against Paula's lawyer. The lawyer can't be liable for disclosing Barry's own emails to him in response to his own discovery request. The allegations against Paula, on the other hand, technically fall within the language of the Act, (see 18 U.S.C. § 2511(1)(a)) though Congress probably didn't anticipate its use as a tactical weapon in a divorce proceeding.
Gutierrez v. Cobos, ___ F.3d ___ (10th Cir. No. 15-2161 filed 11/15/16). Deputy Gabriel Maynes attempted to stop Anna Gutierrez for running a stop sign. Instead of stopping, however, Gutierrez sped up and continued driving until she reached the apartment complex where her mother, Pasty Flores, lived. When Deputy Maynes saw Gutierrez exit her vehicle and begin running towards Flores's apartment, he fired a taser dart into her back. As Gutierrez pounded on her mother's door, Deputy Maynes caught up and began hitting, kicking, and tasing her. When Flores opened the door, Deputy Maynes pushed Gutierrez inside and continued hitting and tasing her. After Flores pled for Deputy Maynes to stop, he tased her on her leg and threatened to arrest her too. Deputy Maynes eventually handcuffed and arrested Gutierrez, who had to have the taser dart surgically removed from her back, and additionally suffered two fractured ribs. Gutierrez and Flores subsequently sued Deputy Maynes under 42 U.S.C. § 1983, alleging he engaged in excessive force, an illegal entry, and an illegal seizure. The district court granted Deputy Maynes's motion for summary judgement based on qualified immunity, which Gutierrez and Flores appealed. In considering the plaintiffs' claims, the Tenth Circuit focused on whether the plaintiffs had established the violation of a clearly established right. Turning first to the excessive force claim, the Tenth Circuit agreed that summary judgement had been appropriate because the plaintiffs had not cited any authority suggesting Deputy Maynes violated any clearly established law. To support their unlawful entry claim, the plaintiffs argued it was clearly established that an officer cannot enter a home in hot pursuit of a suspect believed to be engaged in a misdemeanor offense. The Tenth Circuit disagreed, pointing out that in Mascorro v. Billings, 656 F.3d 1198 (10th Cir. 2011), it held that the "hot pursuit" exception must involve a "serious offense" and exigent circumstances. But, because Mascorro did not define "serious offense," the court concluded it had not been clearly established as of 2009 that Deputy Maynes's entry into Flores's home was unlawful. Finally, the court affirmed summary judgment on the illegal seizure claim, agreeing with the district court's finding that the plaintiffs had not cited any case law establishing it was clearly established as of 2009 that the use of a taser constituted a "seizure" under the Fourth Amendment. The Tenth Circuit affirmed summary judgement on all claims.
Durkee v. Minor, ___ F.3d ___ (10th Cir. No. 16-1006 , 11/14/16). The Tenth Circuit affirmed a decision requiring a sergeant to go to trial on an inmate's failure to protect claim but reversed a decision denying the sheriff summary judgment. James Durkee was an inmate at the Summit County Detention Center. In 2012, Durkee was meeting with a mental health counselor in the detention center's visitation room when he saw, through a window, that Sergeant Ron Hochmuth was escorting inmate Ricky Ramos from a court proceeding to the booking area. Ramos had a history of aggressive behavior at the detention center, including making numerous threats directed at Durkee. Nonetheless, when they arrived in the booking area, Sergeant Hochmuth unshackled Ramos and directed him to return to his housing pod. Instead, Ramos turned around, ran in the visitation room, and assaulted Durkee. Durkee subsequently sued Hochmuth and Sheriff John Minor under 42 U.S.C. § 1983, arguing they had violated his rights under the Eighth Amendment. The district court denied both defendants' motions for summary judgment, and both appealed. Turning first to Hochmuth's appeal, the Tenth Circuit noted that although Hochmuth had been aware of Ramos's aggressive tendencies, he testified he had not known Durkee was in the visitation room when he unshackled Ramos. In Farmer v. Brennan, 511 U.S. 825, 826 (1994), the U.S. Supreme Court held that "an official's failure to alleviate a significant risk that he should have perceived but did not, while no cause for commendation, cannot . . . be condemned as the infliction of punishment." Despite Hochmuth's testimony, the Tenth Circuit held that the issue presented a fact question for the jury, as the jury could reject Hochmuth's testimony based on the fact that Durkee and Ramos had plainly seen one another through the window. The Tenth Circuit affirmed the district court's ruling with respect to Sergeant Hochmuth. Turning next to Durkee's claim against Sheriff Minor in his individual capacity, the Tenth Circuit reiterated that there is no special rule of liability for supervisors. "The test for them is the same as the test for everyone else." Accordingly, to prevail, Durkee was required to show that Sheriff Minor had direct personal responsibility for the alleged deprivation of his rights. Given that the record contained no evidence that Sheriff Minor had been involved until after the altercation, the Tenth Circuit concluded that "basic principals of linear time prevent us from seeing how conduct that occurs after the alleged violation could have somehow caused that violation." The Tenth Circuit reversed the district court's decision with respect to Sheriff Minor and remanded the case for further proceedings.
Maryland v. Nero, (Case No. unknown, Baltimore Circuit Court - decided 05/23/16). A Baltimore police officer was acquitted of assault and other charges in the arrest of Freddie Gray, a young black man who died a week after he was critically injured in police custody. A judge found Officer Edward Nero not guilty of misconduct in office and reckless endangerment. The judge announced his verdict on Monday. Nero was one of six Baltimore police officers charged in the case. He waived his right to a jury trial, opting instead to argue his case before Circuit Judge Barry Williams. An earlier trial for an officer charged with manslaughter in the case ended in a hung jury in December. Gray's death about a year ago led to protests and rioting in the city and fueled the Black Lives Matter movement.
Ocasio v. United States, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 14–361, filed 05/02/16). Ocasio, a former police officer, participated in a kickback scheme in which he and other officers routed damaged vehicles from accident scenes to an auto repair shop in exchange for payments from the shop owners. Petitioner was charged with obtaining money from the shop owners under color of official right, in violation of the Hobbs Act, 18 U. S. C. §1951, and of conspiring to violate the Hobbs Act, in violation of 18 U. S. C. §371. Prosecutors said Ocasio was one of many city officers paid by the owners of Majestic Auto Repair Shop in Baltimore County to send customers to their shop instead of to a city-authorized company. He was sentenced to 18 months in prison. Ocasio claims he didn't violate the law because he never tried to get money from anyone outside the conspiracy. The 4th U.S. Circuit Court of Appeals rejected that argument. The Supreme Court held a defendant may be convicted of conspiring to violate the Hobbs Act based on proof that he reached an agreement with the owner of the property in question to obtain that property under color of official right.
Keiswetter v. State, ___ Kan. ___, ___ P.3d ___ (No. 110610, filed 04/22/16). Zorn, an inmate at Norton, escaped from a work crew and broke in to Helen Keiswetter's house. He shoved her into a closet, causing her to fall and hit her head. She died 8 months later. Her heirs sued the State alleging they negligent failed to prevent the escape. The district court granted the state summary judgement, finding the public duty doctrine applied and the state was immune under the police protection exception in K.S.A. 75-6104(n). The Supreme Court agreed the state was immune under the police protection exception and affirmed. "'[T]he legislature is better equipped to resolve the difficult policy questions inherent in the field of governmental immunity. As judges our desire to achieve what may seem fair to us as individuals cannot overcome the laws enacted by our duly elected legislators.'" Barrett [v. U. S. D. No. 259,] 272 Kan. [250,] 260, [32 P.3d 1156 (2001)] (quoting Brown v. Wichita State University, 219 Kan. 2, 9, 547 P.2d 1015 [1976]).
Welch v. United States, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 15-6418, filed 04/18/16). In Welch, the Supreme Court extended its ruling in Johnson v. United States, allowing it to be applied to those convicted before Johnson was decided. In Johnson, the Court held that the federal three strikes law's residual clause was unconstitutionally vague. That opened up thousands of sentences to challenge and Welch quickly became the most cited case of the Court's last term.
Hudson v. Board of Directors of the Kansas Public Employees Retirement System, ___ Kan.App.2d ___, ___ P.3d ____ (No. 115120, filed 12/30/16). KPERS appealed the district court's decision finding John Hudson, who was diagnosed with post-traumatic stress disorder (PTSD), was permanently disabled, unable to serve as a police officer, and entitled to disability benefits. The Court of Appeals held the district court's conclusion was correct—the Board's decision was not supported by substantial competent evidence and was arbitrary and capricious. Hudson worked for the Kansas City, Kansas, Police Department (KCKPD) from November 1996 to December 2011. In 2007, Hudson became a detective in the child sex abuse unit. He investigated hundreds of child sex abuse cases, often being assigned a new case every other day. Hudson's health records reflect his work in the child sex abuse unit caused his mental and emotional health to deteriorate. In 2011, Hudson had trouble concentrating on the child sex abuse cases to which he was assigned and was not getting his work done. Hudson covered his patrol car's vehicle locator with foil to jam the signal so he could not be located, and he would tell his supervisors he was performing union duties, when in reality, he would drive to his home, to friends' houses, or to a friend's business to avoid work. By October 2011, Hudson's performance had declined so drastically the department launched an internal affairs investigation into his work activities. The investigation revealed Hudson was driving around town and not investigating his assigned cases. As a result, he was given the option of retiring from the KCKPD or facing criminal charges. Hudson retired from the KCKPD on December 1, 2011. Despite 3 of his doctors stating that Hudson suffered from disabling PTSD, KPERS doctor said he didn't and denied his claim. The Board accepted, without explanation, Dr. Ibarra's medical opinion on Hudson's condition over the opinion of Hudson's three treating physicians. Moreover, Dr. Ibarra never tested or interviewed Hudson and never spoke with any of the treating physicians to discuss the basis of each one's diagnosis of PTSD. The Court of Appeals determined that made the board's decison arbitrary and capricious.
Cullison v. Kansas Dept. of Revenue, ___ Kan.App.2d ___, ___ P.3d ____ (No. 114170, filed 05/13/16). An officer saw people on motorcycles late at night revving their engines. He approached and noticed an odor of an alcoholic beverage and other usual indicators of DUI on Cullison. A later breath test showed his bac at 0.189. Cullison's license was suspended and he appealed to district court. At trial he testified that while the motor on his motorcycle ran, the headlight worked, and the motorcycle could be manually propelled, the motorcycle was missing several bolts that made driving it impossible. The district court suspended his license on the premise that Cullison attempted to operate a vehicle while under the influence. The Court of Appeals reversed. If a driver who fails a requested breath test establishes by a preponderance of the evidence that he or she was not operating a vehicle at the time he or she was stopped but merely attempting to operate it, the driver would fall outside the reach of K.S.A. 2015 Supp. 8-1002(a)(2)(A) and the Kansas Department of Revenue would not be statutorily permitted to suspend the person's driver's license.
Pfeifer v. Kansas Dept. of Revenue, ___ Kan.App.2d ___, ___ P.3d ____ (No. 112705, filed 04/01/16). A Hays police officer stopped Pfeifer for an improper left turn and found she was intoxicated. She refused the breath test and requested a hearing on driver's license suspension. The officer appeared and testfied. The hearing officer suspended her license. She appealed. The department of revenue did not subpoena the officer and instead offered the DC-27 as proof of all matters certified therein. The Court held that pursuant to K.S.A. 2015 Supp. 8-1002(b), in all proceedings brought under the Kansas Implied Consent Law, K.S.A. 2015 Supp. 8-1001 et seq., a signed and properly completed Officer's Certification and Notice of Suspension, Form DC-27, or a copy or photostatic reproduction thereof, shall be admissible in evidence to prove the statements contained therein without the necessity for testimony by the certifying law enforcement officer.
State v. Pribble, ___ Kan. ___, ___ P.3d ___ (No. 108915, filed 07/15/16). Officers served a warrant on Pribble's residence. Pribble was charged with possessing marijuana, methamphetamine, paraphernalia, and drug-sale proceeds. The State also charged Pribble with two taxation offenses under K.S.A. 79-5208, to-wit: one count of possession of marijuana with no drug tax stamp and one count of possession of methamphetamine with no drug tax stamp. He alleged the convictions were multiplicitous. The Court agreed. The legislature intended to impose a tax on the marijuana or controlled substances possessed by drug dealers and to make it a crime for those drug dealers to fail to evidence the payment of that drug tax with the appropriate stamps. Consequently, the clear purpose of K.S.A. 2010 Supp. 79-5201(c)'s definition of "dealer" is to differentiate between drug dealers and personal-use possessors of drugs, and, thereby, clarify who is a taxpayer under the act that can be subject to the criminal sanction of K.S.A. 79-5208. In that regard, the legislature's designation of more grams to be considered a marijuana dealer than that required to be a methamphetamine dealer has a basis in fact unrelated to establishing a unit of prosecution. Accordingly, we reject the proposition that K.S.A. 2010 Supp. 79-5201(c) clearly indicates a legislative intent to make the possession of two separate drugs two separate units of prosecution under K.S.A. 79-5208. Rosen concurs and dissents, quoting Steppenwolf's "The Pusher": "Fortunately for Pribble, Steppenwolf's off-grid sentence of—"I'd cut him if he stands, and I'd shoot him if he'd run. Yes I'd kill him with my Bible and my razor and my gun"—was not embraced by our legislature when considering the appropriate sanction for violation of this law."
Taylor v. United States, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 14-6166, filed 06/20/16). Taylor and his gang associates were prosecuted for Hobbs Act robberies of marijuana dealers. After a hung jury, in the retrial the Government urged the trial court to preclude Taylor from offering evidence that the drug dealers he targeted dealt only in locally-grown marijuana. The trial court excluded that evidence and Taylor was convicted on both counts. The Fourth Circuit affirmed, holding that, given the aggregate effect of drug dealing on interstate commerce, the Government needed only to prove that Taylor robbed or attempted to rob a drug dealer of drugs or drug proceeds to satisfy the commerce element. The Supreme Court agreed.
State v. Holsted, ___ Kan.App.2d ___, ___ P.3d ____ (No. 112846, filed 04/08/16).
Kansas law makes it a crime to cultivate marijuana. Cultivate means the planting or promotion of growth of five or more plants which contain or can produce controlled substances. K.S.A. 2015 Supp. 21-5701(c). We adopt a test to determine if a plant cutting is a plant. Does the cutting have some visible root formation? If it does, it is a plant. If it does not, it is a cutting and cannot be the basis for a charge of cultivation of marijuana. On March 1, 2013, Kansas City, Kan., officers knocked on Steven Holsted’s front door after receiving complaints of marijuana odors. He invited the officers inside. Once inside, they found 2 grams of marijuana, which Holsted admitted was his. Officers asked to search the house and Holsted consented, according to court documents, so they walked into his attic. There they found an apparent marijuana-growing operation. Along with the 29 small plants, referred to as “cuttings,” they found grow lights and one large marijuana plant with a complete root system. Holsted was convicted of cultivation of marijuana, possession of drug paraphernalia and possession of marijuana. He challenged the charge by claiming his 29 cuttings weren’t plants because they didn’t have roots. The Court of Appeals agreed and, in a unanimous ruling, reversed the conviction for cultivation.
State of Kansas v. City of Wichita, ___ Kan. ___, ___ P.3d ___ (Case No. 113528, filed 01/22/16). A Wichita ordinance that purports to reduce the penalties for possessing small amounts of marijuana is null and void. Wichita voters approved the ordinance in April 2015, with 54 percent of its citizens voting in favor of the measure. The Court held the ordinance was not adopted in accordance with procedures set out in K.S.A. 12-3013(a) and the court thus issues a writ of quo warranto declaring the ordinance null and void. The petition and ordinance were not filed with the clerk as required by the statute, thus the "accompanying petition," and the full ordinance cannot reliably be forwarded by the clerk to the governing body for its careful review.
City of Dodge City v. Webb, ___ Kan. ___, ___ P.3d ___ (No. 109634, filed 10/21/16), affirming 50 Kan. App. 2d 393, 329 P.3d 515, 522 (2014)(No. 109634, filed 06/13/14). Webb, a two-time DUI offender, argued K.S.A. 2011 Supp. 8-1012(b) was unconstitutional because it allows an officer to request a PBT upon reasonable suspicion—rather than probable cause—that the driver was operating a vehicle while under the influence of alcohol or drugs or both. He further claimed that without the illegal PBT, the officer did not have probable cause to arrest him for DUI. The Court of Appeals rejected these arguments and held that because the officer had probable cause without the PBT results, and because the officer had legal justification for threatening to obtain a search warrant after Webb's initial refusal to take the breathalyzer test, Webb was not improperly coerced into ultimately submitting to the breathalyzer test. A Dodge City officer stopped Webb's vehicle for a tag light violation. The officer noted the odor of an alcoholic beverage, but could not tell if it was coming from the driver (Webb, who denied drinking) or the passengers (who admitted drinking). After getting Webb out of the vehicle, the officer noted a moderate odor coming from him and Webb then admitted to drinking one beer. Webb displayed four out of eight clues of impairment on the walk-and-turn test and three out of four clues of impairment on the one-leg-stand test. A PBT indicated 0.127, and a breath test 0.125. Webb then admitted to six beers, not one. The Court held there was probable cause independent of the PBT, so it need not determine the constitutionality of K.S.A. 8-1012. Further, because the officer was legally entitled to seek a warrant in order to obtain a sample of Webb's blood after he had refused to submit to a breathalyzer test, there was no impermissible coercion. While the statute used to prohibit further testing after a refusal, it no longer does. But see Hoeffner v. Kansas Dept. of Revenue, 50 Kan. App. 2d 878, 335 P.3d 684 (2014), rev. granted 302 Kan. 1009 (2015). Johnson dissents because he disagrees with the court's construction of the implied consent act, and Luckert agrees with him.
State v. Darrow, ___ Kan. ___, ___ P.3d ___ (No. 109397, filed 07/01/16). S. Parker was dispatched to a car up against a chain link fence with the engine running. A very intoxicated female was passed out behind the wheel. When finally awakened, she grabbed at the gearshift lever a couple of times. That was enough under the stipulated facts to establish an attempt to operate the vehicle and convict her of felony DUI. Under the driving under the influence (DUI) statute, K.S.A. 2010 Supp. 8-1567, the term "operate" is synonymous with "drive," which requires some movement of the vehicle. Consequently, an "attempt to operate" under the DUI statute means an attempt to move the vehicle. The taking of actual physical control of a vehicle, without an attempt to move the vehicle, is insufficient to meet the attempt to operate element of DUI.
Bernard v. Minnesota, (No. 14-1470), Birchfield v. North Dakota, 136 S. Ct. 2160, (14-1468 and Beylund v. North Dakota, 14-1506, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (filed 06/23/16). In the absence of a warrant, a state may make it a crime for someone to refuse to take a breath test, but not a blood test, to detect the presence of alcohol in his blood.
State v. Kraemer, ___ Kan.App.2d ___, ___ P.3d ____ (No. 112787, filed 04/29/16). Salina officers stopped Kraemer for failing to signal a turn and found he was DUI. He blew a 0.139 on the breath test. He filed two motions to suppress - one for lack of probable cause to arrest, and the second alleged his consent to take the breath test was coerced based on State v. Nece, 303 Kan. 888 (2/26/16). The district court held consent was coerced, but held the breath test was admissible based on the officer's good-faith reliance on the constitutional validity of K.S.A. 8-1025, which was later struck down. The Court of Appeals affirmed, finding there was probable cause for the arrest and holding that the officer was entitled to good-faith reliance on the statutes in effect at the time.
Lumry v. State, ___ Kan. ___, ___ P.3d ___ (No. 108425, filed 12/16/16), reversing and remanding 49 Kan. App. 2d 276, 307 P.3d 232 (No. 108425, filed 08/16/13). Lumry, a former KBI agent, sued the KBI as well as three of his former supervisors in their individual capacities for violating his rights under the Fair Labor Standards Act (FLSA) and for retaliatory discharge in violation of the Kansas Minimum Wage and Maximum Hours Law (KMWMHL). Lumry was fired for padding his timesheets. In his civil suit, Lumry claimed he was fired in retaliation for his complaints about working uncompensated overtime in violation of the FLSA. See 29 U.S.C. § 215(a)(3) (2006). The Court of Appeals found the majority rule in federal courts is that public officials may be held liable in their individual capacities for violations of the FLSA if they are acting in the interest of the agency and meet the definition of an employer. It then held that two of the supervisors named in the suit did not meet the definition of "employer" under the FLSA, so Lumry's claims against them necessarily fail. As to Blecha, the undisputed facts failed to establish that Lumry made an unequivocal claim under the FLSA for which the Blecha may have retaliated. Finally, Lumry's claim under the KMWMHL failed because the KMWMHL does not apply to any employer that is subject to the FLSA. The Court affirmed summary judgment for the defendants. Standridge, concurring in part and dissenting in part, would have allowed Lumry to proceed on a common-law claim of retaliatory discharge. The Kansas Supreme Court reversed and held that defendants' failure to cross-appeal from the district court's decision regarding Blecha's "employer" status under the FLSA deprived the Court of Appeals of jurisdiction to reach that issue, so it dismissed the cross-petition for review as to that question. It further held that Lumry's complaint about unpaid overtime was sufficient to preclude summary judgment as to whether he engaged in a protected activity. It agreed with the panel that Kansas law recognizes retaliatory discharge as a common-law tort when an employee is fired for invoking rights under either the FLSA or the KMWMHL. And, it held the panel majority erred addressing sua sponte the adequate alternative remedy question. Stegall dissents, and would hold that the 11th Amendment bars plaintiff's claims against the state.
Hill v. State of Kansas, ___ Kan.App.2d ___, ___ P.3d ____ (No. 114403, filed 12/09/16). Sage Hill, a Kansas Highway Patrol (KHP) trooper represented by Morgan Roach, was fired for rude and crude conduct during a traffic stop and insubordination during a Lieutenant's investigation of the complaint. Hill appealed to the civil service board, which reinstated him. Upon reinstatement, he was transferred from Troop H (Columbus) to Troop E (Garden City). Hill tried to appeal to the civil service board twice, but they ended up dismissing his appeal. Hill then sued, claiming retaliation for having exercised his rights. The district court granted defendants summary judgment. The Supreme Court reversed, holding: (1) that Hill's suit for retaliatory job placement cannot proceed because it is not a valid common-law tort and (2) that Hill's suit against the State is barred under K.S.A. 2015 Supp. 75-6103(a) because Hill is not suing for a recognized tort. Accordingly, the trial court erred when it denied the defendants' motions to dismiss. On the retaliation claim, Hill failed to present evidence to establish a prima facie case of retaliation because there was no evidence that his placement in Troop E constituted adverse employment action. Nevertheless, even if there was evidence supporting that Hill's placement in Troop E constituted an adverse employment action, summary judgement was still appropriate because Hill failed to provide evidence establishing a causal connection between his successful KCSB appeal and his job placement in Troop E.
Bauer v. Lynch, ___ F.3d ___ (4th Cir. No. 14-2323, filed 01/11/16). "Put succinctly, an employer does not contravene Title VII when it utilizes physical fitness standards that distinguish between the sexes on the basis of their physiological differences but impose an equal burden of compliance on both men and women, requiring the same level of physical fitness of each."
State v. One 1995 Chevrolet Caprice Classic/Impala SS, ___ Kan.App.2d ___, ___ P.3d ____ (No. 114952, filed 09/30/16). The Highway Patrol filed a forfeiture action against the defendant property after it was used in a felony fleeing and eluding. No one filed a claim, but the purported owner showed up at a hearing and desired to contest the forfeiture and the district court let him. The district court ordered the car's return to the purported owner. The Court of Appeals reversed, and remanded to a different judge (than Ron Svaty) to award the property to the Highway Patrol. Strict compliance with K.S.A. 2015 Supp. 60-4111 is mandatory for a person to establish standing to dispute a proposed forfeiture.
Luis v. United States, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 14-419, filed 03/30/16). Luis was charged with paying kickbacks, conspiring to commit fraud, and engaging in other crimes all related to health care. See §1349; §371; 42 U. S. C. §1320a–7b(b)(2)(A). The Government claimed that Luis had fraudulently obtained close to $45 million, almost all of which she had already spent. Believing it would convict Luis of the crimes charged, and hoping to preserve the $2 million remaining in Luis’ possession for payment of restitution and other criminal penalties (often referred to as criminal forfeitures, which can include innocent—not just tainted—assets, a point of critical importance here), the Government sought a pretrial order prohibiting Luis from dissipating her assets. See 18 U. S. C. §1345(a)(2). And the District Court ultimately issued an order prohibiting her from “dissipating, or otherwise disposing of . . . assets, real or personal . . . up to the equivalent value of the proceeds of the Federal health care fraud ($45 million).” The Supreme Court, in a 5-3 decision, held the pretrial restraint of legitimate, untainted assets needed to retain counsel of choice violates the Sixth Amendment.
United States v. Texas, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 15-674, filed 06/23/16). The Supreme Court split four to four in a case challenging one President Obama's signature immigration reform efforts. The case, was one of the Court's highest profile disputes of the term, touching on a host of significant issues, from the ability of states to challenge federal immigration programs, to the extent of executive branch power, and to, not insignificantly, the status of millions of immigrants. The split essentially puts the program, Deferred Action for Parents of Americans and Lawful Permanent Residents or DAPA, on hold for the foreseeable future, leaving in place an injunction shutting down the program nationwide.
Cincinnati Enquirer v. State of Ohio, Ohio Supreme Court Case No. unknown, profiled on Policeonce.com 12/06/16. Video footage from police cruiser dashcams is a public record that, with some exceptions, should be promptly released upon request. The Ohio Supreme Court's unanimous decision came in a case involving a State Highway Patrol chase last year on Interstate 71. The state denied a request by The Cincinnati Enquirer for video of the Jan. 22, 2015, pursuit, saying the footage was a "confidential law enforcement investigatory record" and, thus, an exception under public records law. The video documents the troopers' real-time investigative activities, the state argued. The Supreme Court rejected the state's arguments, though the court said some material could be shielded on a case-by-case basis if it was deemed part of a criminal investigation. "The dash-cam recordings fit within the definition of a 'record' because they document governmental activities, decisions, and operations during a traffic stop and pursuit," Justice Judi French wrote in the court's opinion. French said about 90 seconds of the video — when the suspect was taken to a cruiser, read his rights and questioned — could have been shielded as part of the investigation. "In the end, we hold that decisions about whether an exception to public-records disclosure applies to dash-cam recordings require a case-by-case review to determine whether the requested recordings contain investigative work product," French wrote. The court denied the newspaper's request for attorneys' fees, saying the state acted reasonably in withholding the video until the criminal case was over. That brought a rebuke from Justice William O'Neill, who said the fees should have been granted.It is "wrong for this court to recognize the clear public interest in police dash-cam recordings and then to deny the Enquirer reasonable attorney fees after it shed light on this ongoing dispute between the state's need for privacy and the public's right to know what is going on," O'Neill wrote. Still pending before the court is a related argument over police body camera footage.
Case Name and Number Unknown. Reported in the The Chicago Tribune and on LRIS.com 07/11/16). An Illinois appeals court overturned an injunction that had blocked the release of decades of records of citizen complaints against Chicago police officers, ruling that the documents must be made public. A unanimous three-judge panel ruled that the disciplinary records must be released under the Freedom of Information Act. The Fraternal Order of Police, which represents rank-and-file officers, had sued in 2014 to block the records from being released, arguing that its collective bargaining agreement with the city required that any disciplinary records more than 4 years old be destroyed. That same year, Cook County Judge Peter Flynn granted an injunction to the FOP barring the release of complaint records against thousands of current and former officers going back decades. The Chicago Tribune joined in an appeal of that decision with the city and the Chicago Police Department. In its decision, the appeals court panel found that Flynn had erred in issuing the injunction, concluding that a clause in the union’s bargaining contract requiring the destruction of public records after four years was “legally unenforceable.” “In light of these public policy considerations and the purpose of the FOIA to open governmental records to the light of public scrutiny, an award in the pending arbitration proceedings would be unenforceable if it circumvented the City’s required compliance with the FOIA requests at issue.” “Therefore, there was no legal basis for the circuit court to enjoin defendants from releasing the requested records.” The union could appeal the case to the Illinois Supreme Court, a move that would block the release of the records while the state’s highest court decided whether to hear the case.
The Tennessean v. Metropolitan Government of Nashville, ___ Tenn. ___ (No.
14156IV, 03/17/16). A media organization had no right under the state's public records act to request information related to an ongoing criminal investigation during the pendency of that criminal case and any collateral challenges. In so holding, the court explained: "if the media could make a public records request and obtain the investigative files, then the defendant and potential jurors could learn about the State's case against the defendant by reading a newspaper or watching a television news broadcast. This absurd result was not intended by the Legislature and would have a negative impact on a police department's ability to investigate criminal activity and a defendant's ability to obtain a fair trial."
Tyson Foods, Inc. v. Bouaphakeo, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 14-1146, filed 03/22/16). In a putative employment class action brought by meat processors, alleging that the donning and doffing of safety gear were integral and indispensable to their hazardous work and that employer's policy not to pay for those activities denied them overtime compensation required by the Fair Labor Standards Act of 1938 (FLSA) and violated Iowa wage law, the Eight Circuit's affirmation of the District Court's judgment in worker's favor is affirmed where District Court did not err in certifying and maintaining the class because common questions, such as whether donning and doffing protective gear was compensable under the FLSA, were susceptible to classwide resolution even if not all of the workers wore the same gear.
Duberry v. District of Columbia, #15-7062, 2016 U.S. App. Lexis 10096 (D.C. Cir.). Four retired correctional officers claimed that the District of Columbia improperly deprived them of their federal right to carry a concealed weapon under the Law Enforcement Officers Safety Act (LEOSA), 18 U.S.C. 926C. They claimed that they met the statutory requirements but that they were unable to obtain firearms training because the District refused to certify that, as corrections officers, they had the power to arrest, specifically to arrest parole violators. The federal appeals court found that the complaint sufficiently alleged that they had been unlawfully deprived of a concrete individual right designed to benefit them, which could be remedied under 42 U.S.C. Sec. 1983.
Nichols v. United States, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 15-5238, filed 04/04/16). A convicted sex offender who fled the country without notifying authorities did not violate the Sex Offender Registration and Notification Act. Lester Ray Nichols had been on the sex offender registry in Kansas for a year when he up and moved to the Philippines. The Court found that SORNA did not require offenders to notify authorities when they left U.S. jurisdiction. SORNA is not international in scope, meaning that the Philippines were not a "jurisdiction" under the act. The government argued, and the Tenth Circuit agreed, that when a sex offender "leaves a residence in a state, and then leaves the state entirely, that state remains a jurisdiction involved" under the law. The Supreme Court flatly rejected that interpretation. SORNA speaks only of where an offender resides, not where he will reside. If an offender leaves SORNA's jurisdiction, he has no further obligation to update his registration. "A person who moves from Leavenworth to Manila no longer 'resides' (present tense) in Kansas," Alito explained. The decision has limited reach. After Nichols was arrested, Congress enacted the International Megan's Law to Prevent Child Exploitation and Other Sexual Crimes Through Advanced Notification of Traveling Sex Offenders. That act does criminalize failing to provide SORNA-mandated information when traveling internationally; it simply wasn't in effect at the time Nichols fled.
Encino Motorcars, LLC v. Navarro, ___ U.S. ___, 136 S. Ct. 890, ___ L.Ed.2d ___ (No. 15-415, filed 06/20/16). (2016). The Department of Labor’s (“DOL”) 2011 regulation classifying vehicle “service advisors” as eligible for overtime pay under the Fair Labor Standards Act (“FLSA”) was not enforceable. The DOL failed to sufficiently explain and support its 2011 change in its long-standing position that service advisors were exempt from overtime. The Ninth Circuit had upheld the regulation (codified at 29 C.F.R. § 779.372(c)(4)). For decades, the DOL had taken the position that service advisors employed by car dealerships were exempt employees who were not entitled to overtime pay. The 2011 regulation directly contradicted that long-standing interpretation, leaving dealers who had relied on the prior interpretation in a difficult situation. Most importantly, the DOL offered little to no explanation for the shift in its viewpoint. Due to the insufficient reasoning offered in support of the DOL’s new interpretation of the FLSA, the Court held that the 2011 regulation should not be enforced as law.
State v. Henry Petersen-Beard, ___ Kan. ___, ___ P.3d ___ (No. 108061, filed 04/22/15). Lifetime postrelease registration for sex offenders mandated by the Kansas Offender Registration Act, K.S.A. 22-4901 et seq., does not constitute punishment for purposes of applying provisions of the United States Constitution. Contrary holdings in State v. Redmond, 304 Kan. ___, ___ P.3d ___ (No. 110,280, this day decided), State v. Buser, 304 Kan. ___, ___ P.3d ___ (No. 105,982, this day decided), and Doe v. Thompson, 304 Kan. ___, ___ P.3d ___ (No. 110,318, this day decided), are overruled. Johnson, Beier and Rosen dissent.
Kerry G. v. Stacy C., ___ Kan.App.2d ___, ___ P.3d ____ (No. 114757, filed 12/09/16). Stacy C. appealed a district court's decision to grant an order of protection against him and in favor of Kerry G., a woman he had dated. Stacy contended that there wasn't sufficient evidence of bodily injury to constitute abuse under the Protection from Abuse Act, K.S.A. 60-3101 et seq. But Kerry testified to Stacy's unwanted sexual contact with her—actions that would constitute rape under Kansas criminal law. Any 2 unwanted sexual touching causes bodily injury under the Act per K.S.A. 60-3101(b). The Court of Appeals affirmed.
Brooks v. City of Des Moines, ___ F.3d ___ (8th Cir. No. 15-2781, filed 12/01/16). Rebuffing a litany of arguments raised by traffic ticket recipients, the Eighth Circuit has upheld a Des Moines ordinance which authorized an Automated Traffic Enforcement (ATE) system operated by a third-party contractor and established municipal court jurisdiction over ATE violations. The drivers' unsuccessful arguments included due process, preemption, right to travel, privileges and immunities, unjust enrichment and more. The drivers cited a provision of Iowa law which states "An officer authorized by a city to enforce a city code or regulation may issue a civil citation to a person who commits a municipal infraction," arguing that the City's process improperly delegated power to Gatso, a third party. The court cited a similar ATE case, Hughes v. City of Cedar Rapids, No. 15-2703, (8th Cir. 2016), which had articulated that a municipality may delegate properly duties which do not involve discretion or judgment. Because such delegation was proper, there was no unjust enrichment by Gatso. The Hughes decision also put to rest the drivers' claims that the ATE system violated their right to interstate travel and their Privileges and Immunities protections. It found that the ATE system did not discriminate against drivers of any jurisdiction and did not impair travel.
State v. Tofoya, ___ Kan. ___, ___ P.3d ___ (No. 107684, filed 06/17/16). Tafoya was convicted by a jury in 2008 of a fourth offense driving under the influence and was sentenced to 180 days in jail, 12 months' postrelease supervision, and a mandatory $2,500 fine. On direct appeal, the Court of Appeals ruled that the district court had erred by imposing a mandatory fine without making the necessary factual findings concerning Tafoya's financial condition. State v. Tafoya, No. 100,784, 2010 WL 5185473, at *9 (Kan. App. 2010) (unpublished opinion), rev. denied 293 Kan. 1113 (2011) (Tafoya I). Subsequent to the remand before before further district court proceedings, the legislature repealed the lifetime lookback and went a July 1, 2001 lookback. Tayofa, who case came up for remand hearing in 2012, argued he should get the benefit of the amendment. The district court and Supreme Court disagreed. The court held that a sentence is not rendered illegal simply because the district court judge fails to consider (or fails to state on the record that he or she has considered) the financial resources of the defendant when determining either the discretionary amount of a fine or the discretionary method of payment. Moreover, a remand from an appellate court to a district court pursuant to these authorities to correct this error is, in substance, not a remand for resentencing. As such, the Tafoya I panel was substantively correct when it limited its mandate to vacating the fine and instructing the district court to reconsider "the method of payment of the fine."
Hurst v. Florida, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 14–7505, filed 01/12/16). Florida’s capital sentencing scheme violates the Sixth Amendment. Any fact that “expose[s] the defendant to a greater punishment than that authorized by the jury’s guilty verdict” is an “element” that must be submitted to a jury. Florida requires not the jury but a judge to make the critical findings necessary to impose the death penalty. That Florida provides an advisory jury is immaterial. Hurst had the maximum authorized punishment he could receive increased by a judge’s own factfinding.
Melissa Adamson, Pittsburgh PA. Melissa Adamson, a part-time police officer, posted a picture on Snapchat with a racial slur that cost her two jobs. The picture showed her in uniform and was captioned with "I am the law, Nigga." One police department fired her and she also resigned from her part-time job at another department Tuesday night. A police chief said that she was on the force for less than a year. Adamson issued an apology after her resignation. "I don't want this to affect how I do my job. I don't want people to look at me differently, thinking that I can't build myself up to the standard of a police officer," Adamson said. "Again, it was a stupid mistake. It shouldn't have been posted in general, regardless of how my intentions were." Adamson said that the photo was posted months ago when she worked for another police department.
Rodney Lee Wilson, Overland Park, KS. A Kansas cop was fired for making bizarre online threats against a complete stranger’s young daughter after the July 7, 2016, attack on Dallas police. Officer Rodney Lee Wilson was dismissed from the Overland Park force on 07/08/16 Friday after he commented on a public photo of LaNaydra Williams’ daughter, India — a 5-year-old who lives about 500 miles away in Dallas. “We’ll see how much her life matters soon,” he wrote on a 2014 photo showing little India posing in a pair of boots. “Better be careful leaving your info open where she can be found :) Hold her close tonight it’ll be the last time.” The chilling comment came just after five Dallas cops were killed while protecting an anti-police brutality protest downtown.
Bonenberger v. St. Louis Metropolitan Police Department, No. 14-3696 (8th Cir. Jan. 19, 2016). A white Sergeant applied for Assistant Director of the Police Academy despite not having the minimum three years of supervisory experience and two years of teaching experience. A lieutenant told him he should not bother applying because "the job was going to a black female." That person, Sergeant Taylor, also lacked the minimum experience and had less supervisory experience, less teaching experience, and scored lower than Bonenberger on her performance evaluations, but got the job anyway. Bonenberger sued under §§1983 and 1981, alleging he was not hired because of his race. The case went to trial and the jury found in favor of Bonenberger, awarding both actual and punitive damages. The Police Department moved for judgment as a matter of law and, upon losing that motion before the trial judge, appealed to the Eighth Circuit. The Circuit found discriminatory intent and rebuffed the Police Department's argument that no adverse employment decision occurred because the position sought was not a promotion. The court found that denial of a transfer can constitute an adverse employment decision if the new positions offers materially different working conditions. The evidence showed the Assistant Academy Director job came with more supervisory duties, a regular working schedule and hours, greater prestige, and significantly increased promotion potential once performed. Thus, the Circuit Court found the lower court properly denied the motion for judgment as a matter of law and affirmed its denial.
State v. Uk, ___ Kan. ___, ___ P.3d ___ (No. 113900, unpublished, filed 10/07/16). Uk shot his brother, who was attacking his mom at the time, and was charged with attempted voluntary manslaughter. Prior to trial, the district judge granted Uk's motion to dismiss on the basis of stand your ground immunity. The Court of Appeals, in a 2-1 decision, reversed. “There was no evidence presented that Uk (or a reasonable person) would have known or believed that [his mother] was at risk of ‘imminent death or great bodily harm,’” Buser, along with Judge David Bruns, ruled that Ear stopped hitting his mother after the first shot was fired, making a second and third gunshot unnecessary. Court of Appeals Chief Judge Thomas Malone disagreed. In a dissenting opinion, Malone argued Uk was authorized under the law to use deadly force in this case. “Ear savagely attacked Kraus and was beating her with his fists,” Malone wrote. “Kraus had blood all over her face. She testified that Ear hit her so hard that she almost blacked out and her face swelled up and turned black.” Because the gunshots were fired in rapid succession, with only one or two seconds of delay, Malone determined the state failed to prove Uk’s use of force in defense of his mother was unlawful.
State v. Barlow, ___ Kan. ___ No. 108830, filed 02/19/16. This case was decided under the "stand your ground" immunity statute, K.S.A. 2014 Supp. 21-5231. Basically, after a jury convicts you of attempted 2d degree murder, a judge can turn around and acquit you based on stand your ground immunity, even though you never raised the immunity issue. Barlow, his buddy J.M.-M. and Barlow's ex-girlfriend T.S. were all drinking wine. T.S. apparently passed out, and J.M.-M. got on top of her, put his hands in her panties and began masturbating. Barlow, attempting to stop the rape, tried to shoot J.M.-M. in the back of the head, but the gun apparently malfunctioned. Barlow was convicted by a jury of attempted 2d degree murder, but the district judge set the verdict on that count aside, holding that Barolow was immune. The Court of Appeals reversed and reinstated the conviction. The Supreme Court reversed the Court of Appeals, holding the district judge's action was an acquittal and unappealable.
January 1, 2015 through December 31, 2015 (or thereabouts)
Cory v. City of Basehor, ___ F.3d ___ (10th Cir. No. 14-3270, filed 11/12/2015). Cory constantly complained to supervisors about alleged violations of the department’s policies. For example, he reported that officers kept unloaded shotguns in patrol vehicles; officers had placed shotguns into the trunks of their vehicles rather than keeping them in the passenger compartment, problems with the camera in his patrol vehicle; problems with his holster, bald tires on his patrol car, an officer had made a threat of physical violence against him on the telephone; and he had observed his fellow officers going home or to the office to sleep on the job instead of remaining on patrol, among other things. After an allegation that Cory had improperly used city resources a heated meeting occurred between Cory, his Lieutenant and the Chief. The next day, the Lieutenant issued Cory a letter of reprimand for lack of courteous and respectful behavior toward superiors. Cory also recorded a conversation with the Chief without the Chief's knowledge. He was suspended and eventually fired for “his inability to get along with his coworkers and because he lost the trust of his command staff.” Cory sued, alleging violation of his First Amendment rights. The district court granted the defendants summary judgment, holding that Cory's complaints were made as part of his official job duties and did not enjoy First Amendment protection. The Circuit affirmed. In order for statements by government employees to have First Amendment protection, they must be “outside the course of his ordinary job responsibilities.” Lane v. Franks, 134 S. Ct. 2369, 2374 (2014); Seifert v. Unified Gov’t of Wyandotte Cty./Kan. City, 779 F.3d 1141, 1150 (10th Cir. 2015).
Medici v. City of Chicago, ___ F.Supp. ___ (No. 15 CV 5891, N. D. Ill. 10/29/15). A Chicago police officer's tattoo is a form of personal expression that might be misinterpreted by the public. In dismissing a suit by FOP members challenging a rule that all tattoos must be covered, Judge Kocoras said:
"For some, the Confederate flag signifies honor and valor, displayed in recognition of the many who gave their lives in defense of strongly held beliefs," Kocoras wrote in this week's decision. "For others, that same flag epitomizes the subjugation of an entire race of people and represents disobedience to the principle our nation holds dear, that all men are created equal. Due to the fact that symbols can so easily be misinterpreted, regulation of tattoos by their content would be unworkable and ineffective."
Medici's tattoo is a halo and wings honoring fellow Marines who didn’t make it home from Iraq. Other plaintiffs were Chicago Police Officers Dennis Leet and John Kukielka, who both have tattoos of Saint Michael — the patron and protector of police. All three plaintiffs became cops years before the police department changed its policy on June 8, 2015. “The City failed to bargain with the police union before adopting the dress code policy change and did not consider fully alternatives to its broad-sweeping action,” the lawsuit alleged.
Cutting v. City of Portland, Maine, ___ F.3d ___ (1st Cir. No. 14-1421, filed 09/11/15). In 2012, police in Portland, Maine declared a "public safety emergency." Too many people, it seemed, were panhandling. Asking "brother, can you spare a dime," the mendicants would often stand on busy street corners and medians, entreating drivers as they passed by. Concerned that panhandlers would stumble into traffic -- or just wanting to keep the poor out of sight and out of mind -- the Portland City Council adopted a resolution banning virtually all activity in median strips. The law banned virtually every use of a media, except for passing over it when crossing a street. Standing, sitting, staying -- all were illegal when done on a median. That indiscriminate ban on "virtually all expressive activity" violates the First Amendment's guarantee of free speech, the First Circuit ruled. The district court had struck down Portland's law on the grounds that it was a content-based restriction on speech, subject to strict scrutiny. The 1st Circuit disagreed, holding the ordinance was content-neutral, but was not narrowly tailored to achieve a legitimate government purpose.
Cressman v. Thompson, ___ F.3d ___ (10th Cir. No. 12-6151, filed 08/04/15). The State of Oklahoma requires citizens to choose either the state's standard license plate depicting a Native American shooting an arrow at the sky or pay an additional fee for a specialty license plate. Cressman objected to the new design based on his belief that it conveyed a message of multiple gods and "the arrow as an intermediary for prayer." He filed suit under 42 U.S.C. § 1983 for violation of his First Amendment rights. The district court dismissed Cressman's claim for failure to state a claim upon which relief could be granted. Cressman appealed. The Tenth Circuit first considered whether the license plate's image could be considered "pure speech." The court acknowledged that "pure speech" activities such as fiction, dance, and music without words are "rigorously protected," but emphasized that whether an image is or is not "pure speech" is dependent on context. The court held that mass-produced images were not a matter of self-expression or creativity, but rather were designed to "market Oklahoma as a tourist destination." Thus, the court concluded, the image was not "pure speech" subject to First Amendment protections. Next, the court addressed Cressman's claim that the Native American image constituted symbolic speech that communicated the ideas of ritualistic prayer and pantheism. The court viewed the image under the lens of a "reasonable observer" and the inferences and ideas he or she would draw from the license plate. The court agreed the image was symbolic speech, but concluded the only message a reasonable observer could derive from it was that Oklahoma's history and culture were strongly influenced by Native Americans. Because Cressman repeatedly agreed he did not object to that message, the Tenth Circuit held that Cressman failed to state a viable claim under the First Amendment.
Siefert v. Wyandotte County,779 F.3d 1141, 1150 (10th Cir. No. 13-3153, filed 02/27/15) A former Kansas City, Kansas, police detective who refused to conceal a motorist’s beating by federal agents is entitled to have a jury decide whether his employer punished him for truthfully testifying about his investigation into the incident. The 10th Circuit Court of Appeals said a lower court was wrong when it summarily threw out without trial the lawsuit filed by former detective Max Seifert against the Unified Government of Wyandotte. The court remanded the case back to U.S. District Court Judge Thomas Marten so a jury can decide the facts. Seifert alleges in his lawsuit that he has faced retaliation after investigating Drug Enforcement Administration agents involved in a 2003 “road rage” incident that left a man with permanent brain damage. See Bowling v. United States, 740 F. Supp. 2d 1240 (D. Kan. 2010). Siefert was later terminated from the Wyandotte County Sheriff's Office for credibility concerns expressed by AUSA Tara Morehead, see United States v. Elam, No. 98-20037-01 (D. Kan. Sept. 15, 1998). The order suppressed evidence obtained under a search warrant for drug evidence because Siefert had seized a large number of allegedly stolen items not covered by the warrant. The judge stated that she did not believe Plaintiff’s account of his conversation with the defendant concerning those items. Siefert contends he was removed from investigations and his reserve commission revoked as punishment for his testimony on behalf of the injured man. The appeals court also found that Seifert had a First Amendment speech right to testify on behalf of the injured man. All the legal maneuvering stems from a 2003 minor car accident involving motorist Barron Bowling and a DEA agent traveling in an unmarked car. The accident was later found to be the agent’s fault, but when Bowling refused to stop the DEA agent called for backup. When he was finally stopped, the men beat him. Seifert investigated the incident. Seifert was initially subpoenaed as a defense witness in a 2005 criminal trial in which the beaten motorist was found not guilty of a felony charge related to the accident. Seifert testified again in 2010 in the civil case brought by the motorist against the United States. In that separate case, U.S. District Judge Julie Robinson excoriated the Kansas City Police Department in a scathing 2010 decision for the “shameful” way it treated Seifert, whom she called the most credible of all witnesses. The judge awarded the motorist $833,250 in damages against the DEA. Seifert was shunned and treated as a pariah by his police colleagues and superiors following his testimony. After Seifert’s forced retirement from law enforcement in 2005, he was denied a commission that would allow him to work as a security guard. “Seifert was balkanized for crossing the ‘thin blue line,'” Robinson wrote, adding that Seifert had conducted a thorough investigation and lost his career over the Bowling case.
Friedman v. Highland, ___ U.S. ___, (No. 15-133, cert. denied 12/07/15). The Supreme Court let stand Highland Park Illinois ban on semi-automatic guns and ammunition magazines of more than 10 rounds. Thomas and Scalia dissented, saying the Chicago appeals court ruling “flouts two of our Second Amendment precedents.” Thomas said the weapons ban “is highly suspect because it broadly prohibits common semi-automatic firearms used for lawful purposes” by roughly five million Americans. In October, a federal appeals court in New York largely upheld similar laws in Connecticut and New York, among a handful of states that ban semi-automatic weapons. Seven states and the District of Columbia have enacted laws banning assault weapons. The others are California, Hawaii, Maryland, Massachusetts and New Jersey, according to the Law Center to Prevent Gun Violence. In addition, Minnesota and Virginia regulate assault weapons, the center said.
New York State Rifle & Pistol Ass’n, Inc., et al. v. Cuomo, et al. & Connecticut Citizens’ Defense League, et al. v. Malloy, et al., ___ F.3d ___ (2d Cir. Nos. 14 36 cv (Lead); 14 37 cv (XAP), filed 10/19/15). The 2d Circuit upheld strict statewide bans on assault weapons and large-capacity magazines that were passed in New York and Connecticut after the 2012 mass murders at Sandy Hook Elementary School. In finding that the “core provisions” of the laws did not violate the Second Amendment, the panel said the states had acted “based on substantial evidence” and had “tailored the legislation at issue to address these particularly hazardous weapons.” The court noted that state legislatures were “far better equipped than the judiciary to make sensitive public policy judgments (within constitutional limits) concerning the dangers in carrying firearms and the manner to combat those risks.” Both states’ laws banned assault weapons that contained any one of a list of military-style features, including a telescoping stock, a flash suppressor or a grenade launcher. The panel struck down one provision of New York’s law that forbids possession of a magazine loaded with more than seven rounds of ammunition. New York originally prohibited possession of a magazine loaded with more than seven rounds, but after such magazines were found to be difficult to obtain commercially, the law was changed to allow New York gun owners to possess a magazine capable of holding up to 10 rounds but not to load it beyond seven rounds. New York had failed to show, that “the mere existence of this load limit will convince any would-be malefactors to load magazines capable of holding 10 rounds with only the permissible seven.”
United States v. Mariano Meza-Rodriguez, ___ F.3d ___ (7th Cir. No. 14-3271, filed 08/20/15). Non-citizens have a right to bear arms, even if they are in the country illegally, kind of. The ruling overturns a district court finding that the Second Amendment doesn't protect unauthorized aliens. In so holding, the Seventh created a split with the Fourth, Fifth, and Eighth Circuits, all of which have ruled otherwise. But, there's a catch. While the right to bear arms extends to unauthorized non-citizens in the U.S., the Second Amendment also allows for limits. That includes a federal law banning unauthorized immigrants and nonimmigrant visa holders from possessing firearms, the court concluded. Mariano Meza-Rodriguez was arrested in 2013 with a single .22 caliber cartridge. Meza-Rodriguez was arrested after a particularly rough night in Milwaukee, after he pulled a gun in one bar and got into a brawl in another. The right to bear arms is not unlimited, the court explained; the right is subject to reasonable regulations. Applying intermediate scrutiny to the federal ban on arms possession by unauthorized aliens, the court found the law to be reasonable. Since unauthorized aliens "often live largely outside the formal system" and are "harder to trace and more likely to assume a false identity," the government may rationally limit their access to firearms.
Deffert v. Grand Rapids, ___ F.Supp. ___ (D. Mich. 2015). When a man armed with a loaded assault pistol strapped to his leg, dressed in camouflage, and singing to himself began walking in front of a Grand Rapids, Mich., church one snowy Sunday morning in March 2014, an alarmed churchgoer called 911. When police arrived, they took the man's gun, and briefly handcuffed him while they questioned him. The man, Johann Deffert, an "open carry" gun advocate, then sued police saying they had violated his constitutional rights. A federal judge disagreed. U.S. District Judge Janet Neff tossed Deffert's lawsuit, saying the police officer "was justified in following up on the 911 call and using swift action to determine whether plaintiff's behavior gave rise to a need to protect or preserve life ... in the neighborhood." Neff's decision comes as police agencies around Michigan are grappling with increasingly contentious clashes with gun advocates who are showing up at places like churches, schools and government complexes armed with assault rifles and handguns, part of their campaign to educate residents on gun laws, and desensitize the public to the sight of guns. Michigan's controversial "open carry" laws allow people with concealed carry permits to take guns into so-called pistol-free zones, such as schools, as long as the weapon is visible. There is no state law regulating open carrying of weapons in other areas as long as the weapon is in plain view, according to Michigan State Police.
Case Name Unknown - from Detroit Free Press. In July 2013, Sterling Heights police were flooded with 911 calls about two heavily armed men, walking on 15 Mile in front of Henry Ford Medical Center. One was dressed all in black, wearing sunglasses, carrying a rifle. The other had a AK-47 assault rifle strapped across his chest. Both had handguns. Police arrived and one of the gunmen began filming. Police disarmed them and cuffed them, then ran background checks to see if they had weapons permits or any criminal history. They were released after 10 minutes and their weapons returned. Both filed suit, saying police had violated their constitutional rights. Again, a federal judge disagreed. "The single reasonable conclusion is that plaintiffs were knowingly acting in a provocative manner hoping to foment an interaction and cause a disturbance," said U.S. District Judge Robert Cleland in his 2014 ruling. "As events show, they succeeded nicely."In tossing out the suit, the judge said, the two men, in effect, were disturbing the peace and loitering when police arrived, and that the subsequent investigation and brief detention was justified as a result.
Brady Center v. Brownback, F.Supp. ___ (No. 14-CV-2327-JAR, filed 6/5/15). Brady Center's challenge to the constitutionality of Kansas' law, known as the Second Amendment Protection Act (K.S.A. 50-1201 - 50-1211), was dismissed for lack of standing. A provision of 2013 Senate Bill 102 exempts firearms manufactured and owned in Kansas from being subjected to federal law, regulation or authority. The bill's supporters did soften the measure by dropping language calling for arrest or detention of federal agents who sought to enforce federal gun control in Kansas. Kansas Attorney General Derek Schmidt anticipated a legal challenge to the law and requested the Legislature budget $225,000 over a two-year period to cover costs of a legal contest. "Brady Campaign has not shown that any one of its individual members suffers anything but a wholly speculative—much less a “certainly impending”—prospect of future injury."
Fyock v. City of Sunnyvale, ___ F.3d ___ (9th Cir. No. 14-15408, filed 03/04/15). In this case, an ordinance enacted by defendant City of Sunnyvale restricted possession of "large capacity magazines," statutorily defined as a detachable immunity feeding device capable of accepting more than ten rounds. Plaintiffs claim that the ordinance violates their Second Amendment right to keep and bear arms and that they will be irreparably harmed if the ordinance is not immediately enjoined. Order denying plaintiffs' request to preliminarily enjoin the ordinance is affirmed, where: 1) intermediate scrutiny was appropriate; 2) the City's interests in promoting public safety, reducing violent crime, and reducing the harm and lethality of gun injuries in general, were substantial and important government interests; and 3) the district court did not abuse its discretion in determining, on the record before it, that the City presented sufficient evidence to show that the ordinance was likely to survive intermediate scrutiny and that plaintiffs failed to demonstrate that they would like succeed on the merits of their claim
Norman v. Florida, ___ Fl.App. ___ (No. 4D12-3525, filed 02/18/15). Florida’s ban on open carry, while permitting concealed carry, does not improperly infringe on Florida’s constitutional guarantee, nor does it infringe on “the central component” of the Second Amendment—the right of self-defense.
Mocek v. City of Albuquerque, ___ F.3d ___ (10th Cir. No. 14-2063, filed 12/22/15). Mocek, a frequent airline flier, did not like showing TSA agents his identification. While trying to clear security to board a flight without ID, Mocek was ushered to a different line for alternative ID arrangements. Mocek began filming the encounter. TSA agents told him to stop, but Mocek continued. Albuquerque police arrived and were told Mocek was "causing a disturbance," would not put down his camera, and was "taking pictures" of all the agents. Officers began ushering Mocek out of the airport, but having heard from another officer that Mocek refused to show his identification, he stopped and asked to see Mocek's I.D. Mocek responded that he did not have any identification on him. The officer advised him he was under investigation for disturbing the peace and was required to present identification. Mocek declared that he would remain silent and wanted to speak to an attorney. The officer then arrested him. At some point, the police confiscated the camera and deleted the video recordings. Mocek was able to recover his video recordings and they were introduced at trial. He was acquitted on all charges. He then filed suit in district court for unlawful arrest under the Fourth Amendment and a First Amendment retaliation complaint in district court. The district court granted qualified immunity for the arresting officer and all others. Mocek appealed. The Circuit held there was reasonable suspicion to detain for disorderly conduct and if not probable cause to arrest for failure to identify himself, the officer was entitled to qualified immunity, because he would have made a reasonable mistake of law. Next, the court examined whether Mocek had a First Amendment right to film at the airport checkpoint but did not answer the question because, even if it were permissible, the First Amendment retaliation claim would still fail at the third element - failure to prove that the government’s actions in arrest him was substantially motivated in response to his protected speech.
Harte v. Johnson County, Kansas, ___ F.Supp. ___ (D.Kan. No. 13-2586-JWL, filed 12/18/15), appeal filed 10th Cir. No. 16-3014). Adlynn and Robert Harte of Leawood filed suit in federal court against the Johnson County board of commissioners, Sheriff Frank Denning and several deputies for the April 2012 raid on their home. Bob Harte says sheriff's deputies forced him to the floor and scared his wife and children that day looking for a marijuana grow operation last year. It was undisputed that while the deputies were armed, they never pointed a weapon at any plaintiff, nor ever touched any of the plaintiffs. The raid was prompted by the Hartes' purchase a few months earlier of hydroponic growing equipment for an indoor vegetable garden. Authorities obtained a search warrant after misidentifying wet tea leaves found in their garbage (which field-tested positive for Marijuana both times). The district court dismissed the suit, finding the officers had probable cause, and the 2.5 hour search was conducted reasonably.
State v. Morales, ___ Kan.App.2d ___, ___ P.3d ____ (No. 113730, filed 12/11/15). A Reno County deputy lit up a car he saw stopped beside the road in a rural area at approximately 2:30 a.m. Upon contact with the driver, he noted the odor of an alcoholic beverage, and ended up arresting the driver for DUI. The district court suppressed all the evidence holding there was no reasonable suspicion for the stop and it was not a valid public safety stop. The Court of Appeals agreed. There was no objective, specific, and articulable facts to suspect a citizen is in need of help or is in peril. A public safety stop is to be totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.
Callahan v. Unified Gov't. of Wyandotte County, Kansas, ___ F.3d ___ (10th Cir. No. 14-3171, 14-3228 & 14-3230, filed 11/16/15). The three innocent members of the KCK SCORE team that were arrested as part of "operation sticky fingers" sued alleging they were arrested without probable cause. The Circuit reversed a decision refusing to grant the defendant's qualified immunity. Maryland v. Pringle, 540 U.S. 366 (2003) suggests you can arrest a small group when passengers are engaged in a common enterprise (possessing cocaine in the glovebox). There was no clearly established law at the time of the arrests requiring individualized probable cause. " We cannot ask officers to make a legal determination—that law professors probably could not agree upon—without any guidance from the courts and then hold them liable for guessing incorrectly. Qualified immunity exists to prevent exactly that." Callahan, ___ F.3d at ___.
United States v. Hill, 805 F.3d 935 (10th Cir. No. 14-2206, filed 11/09/2015). Hill boarded an Amtrak train in Los Angeles. When the train stopped in Albuquerque, a DEA agent boarded to conduct drug interdiction activities. The agent went to a common area where passengers stored large pieces of unchecked luggage. He saw a suitcase with no nametag and removed it, carried it to the passenger area, and rolled it down the center aisle, asking each passenger if the suitcase belonged to him. All of the passengers, including Hill, denied ownership of the suitcase. The agent determined the suitcase was abandoned and searched it. Inside the suitcase, the agent found a large quantity of cocaine as well as items of clothing linking the suitcase to Hill. The government charged Hill with possession with intent to distribute cocaine. Hill argued the agent’s taking the suitcase from the common storage area and rolling it down the aisle of the passenger area constituted an illegal seizure which rendered Hill’s subsequent abandonment of the bag invalid. The court concluded that Hill could reasonably expect that other passengers or Amtrak officials might briefly move or reposition his suitcase within the common storage area. However, the court also found that because Hill retained responsibility for the suitcase instead of checking it with Amtrak officials, he could reasonably expect that he could access the suitcase in the common storage area at any time. The court held the agent’s actions in taking the suitcase into his own dominion and control for the purpose of finding its owner and conducting narcotics interdiction, deviated significantly from a reasonable traveler’s expectations as to how his bag would be treated in the common storage area. In addition, the court held the agent’s actions deprived Hill of is possessory interest in being able to access his luggage on his own schedule. Consequently, the court concluded the agent’s actions amounted to a seizure of Hills’s luggage. Because the government conceded the agent seized Hill’s luggage without reasonable suspicion, the existence of an exigency or a warrant, the court held it was a violation of the Fourth Amendment. The lack of a baggage tag did not diminish Hill's possessory interest.
Maresca v. County of Bernalillo,___ F.3d ___ (10th Cir. No. 14-2163, 10/22/15). Maresca, his wife, three children and a dog were returning from a family hiking trip in their pickup. Fuentes, a rookie officer on the job for two months, decided to follow Maresca and ran Marescas' plate, but mistyped the number by one digit. The plate came back to a stolen Chevy sedan. Fuentes performed a felony car stop. All the Marescas were handcuffed and held at gunpoint until approximately seven to fifteen minutes into the stop when Fuentes realized her error. The Marescas sued the officers for false arrest and excessive force. The district court granted qualified immunity to the officers. The Marescas appealed to the Tenth Circuit Court of Appeals. The Court of Appeals reversed. It held the Marescas were arrested without probable cause because the officer's actions went beyond a normal Terry stop because the officers had no reasonable basis for believing the Maresca’s were armed and dangerous. Further, the Court held there was no probable cause (or arguable probable cause) due to Fuentes's failure to use readily available information—already on the computer screen in front of her and from the dispatcher—to verify that the Marescas' vehicle was reported stolen before arresting them. The court then denied immunity for Fuentes and granted summary judgment to the Marescas on this part of their claim. The Court granted qualified immunity to a backup officer who was in a separate patrol car and had no opportunity to see the information on Fuentes computer. However, all backup officers were denied qualified immunity on an excessive force by gun-pointing claim. Under the plaintiff's version of the facts, which is the version the court is required to credit at this stage of litigation, a reasonable jury could find that the force used by the officers in pointing their guns at the Marescas, especially the children, after they should have realized a threat did not exist, was excessive under the Fourth Amendment. Lastly, the court held the Marescas presented evidence that each of them suffered psychological and emotional injury that “significantly exceeded” the de minimus requirement. As such, their excessive force claim can proceed to a jury.
Mullenix v. Luna, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 14-1433, per curiam, filed 11/09/15). Israel Leija Jr. fled from a drive-in restaurant in Tulia, Texas, when police tried to arrest him. He was believed to be drunk and carrying a gun. He led officers on a nighttime chase that reached 110 miles per hour. Texas state Trooper Chadrin Mullenix heard about the chase over his radio and drove to a spot where officers were putting a strip of spikes across the highway to puncture the tires of the fleeing car. He had been criticized for not reacting decisively in the past, and he decided on his own to shoot at the fleeing car. His commander advised him to “stand by” and “see if the spikes work first.” But Mullenix fired six shots and killed the driver. Leija's family sued, and a federal judge ruled the case could go to a jury to decide whether Mullenix’s actions were “reckless,” or reasonable under the circumstances. The 5th Circuit Court in a 2-1 decision agreed and said the officer was not entitled to immunity, and that decision was upheld by a 9-6 vote of the full appeals court. The United States Supreme Court reversed, and held that the officer was immune from being sued. “By the time Mullenix fired, Leija had led police on a 25-mile chase at extremely high speeds, was reportedly intoxicated, had twice threatened to shoot officers and was racing towards an officer’s location,” the court said. “Ultimately, whatever can be said of the wisdom of Mullenix’s choice, this court’s precedents do not place the conclusion that he acted unreasonably in these circumstances beyond debate.” Justice Sotomayor dissented, calling the officer’s “rogue conduct,” an affront to the Fourth Amendment. She noted the officer had not been trained in shooting at a fleeing car, and was told not to shoot before the vehicle encountered the spikes across the highway. “When Mullenix confronted his superior officer after the shooting, his first words were, ‘How’s that for proactive?’” she wrote. “The glib comment … seems to me revealing of the culture this court’s decision supports when it calls it reasonable — or even reasonably reasonable — to use deadly force for no discernible gain and over a supervisor’s express order to ‘stand by.’”
State v. Parry, ___ Kan.App.2d ___, ___ P.3d ____ (No. 113130, filed 09/18/15). Law of the case precluded the State from relitigating the constitutionality of a search of Parry's home and the seizure of evidence from the home. The State lost a motion to suppress that evidence in the initial case filed against Parry, and that ruling was affirmed on interlocutory appeal. Immediately after the appellate decision, the State dismissed the first case and refiled identical charges for the purpose of securing another hearing on the constitutionality of the search and seizure so it could assert additional legal arguments (exigent circumstances and inevitable discovery). It again lost a motion to suppress, and appealed again. The Court of Appeals, on its own motion, raised the law of the case doctrine and requested supplemental briefing. Judges Atchison and Buser affirmed the district court, while Judge Gardner dissented, arguing that no preclusion theory was raised by a party below or on appeal, and none played any part in the district court's decision, so the court lacks the authority to assert res judicata or collateral estoppel sua sponte on appeal.
United States v. Sanders, 2015 U.S. App. LEXIS 13867 (10th Cir. No. 14-1296, 08/07/15). Police officers in Aurora, Colorado arrested Sanders on an outstanding warrant after she and her friend, Hussey, exited a store and walked toward her car in the parking lot. Sanders gave permission for a third party to pick up her car and Hussey offered to contact someone to pick up Sanders’ car. However, the officers decided to impound Sanders’ car and conducted an inventory search before having it removed from the lot. The officers found methamphetamine, Ecstasy and drug paraphernalia in Sanders’ car. The government indicted Sanders for possession with intent to distribute controlled substances. Sanders moved to suppress the drugs found in her car, arguing the officers violated the Fourth Amendment by unlawfully impounding her car from private property. The court agreed. The court held that impoundment of a vehicle located on private property that is neither obstructing traffic nor creating an imminent threat to public safety is constitutional only if justified by both a standardized policy and a reasonable, non-pretextual community caretaking rationale. First, the court found that Sanders’ car was legally parked in a private lot and there was no evidence that it was either impeding traffic or posing a risk to public safety. Second, while Aurora’s municipal code explicitly authorizes the impoundment of vehicles from public property under certain circumstances, it does not mention the impoundment of vehicles from private lots. As a result, the court concluded that Aurora Municipal Code does not authorize the impoundment of vehicles from private lots. The court noted that while Aurora policy allowed the officers to offer Sanders the options of releasing them from potential liability if her car was left in the lot or having the car towed by a private company, there was no evidence the officers offered Sanders either of these options, or why they failed to do so. Third, the court held the impoundment was not justified by a reasonable, non-pretextual community caretaking rationale. Sanders’ car was legally parked on private property, and there was no evidence that the officers contacted the owners of the parking lot about leaving her car parked there. In addition, the officers impounded Sanders’ car without offering her the opportunity to make alternative arrangements, even though she said she was willing to have someone pick up the vehicle on her behalf and Hussey offered to find someone to pick up the car for her.
State v. Thomas, ___ Kan. ___, ___ P.3d ___ (No. 110585, filed 07/24/15). Eddie Thomas, Jr. shot and killed Christopher Dotson after agreeing to have sex with Dotson in exchange for money. Thomas claimed a search warrant should not have issued because it contained un-Mirandized statements. Assuming for the purposes of argument the un-Mirandized statements should not have been included, the Court found the affidavit stated the following lawfully obtained information: Dotson was found dead in his apartment on August 25, 2010; he died from a single gunshot wound to the head; he was last seen around 8:30 p.m. on August 22, 2010; his cell phone revealed multiple communications between himself and Thomas on the evening of August 22, 2010; during the course of their August 22nd communications, Dotson offered to pay Thomas $500 in exchange for sex; Dotson withdrew $500 from his ATM on the evening of August 22, 2010; and Thomas admitted to going to Dotson's apartment on the evening of August 22, 2010. The Court concluded that the affidavit contained sufficient evidence of motive and opportunity to commit the crime and therefore supported a finding of probable cause apart from Thomas' un-Mirandized confessions.
United States v. Archuleta, ___ F.3d ___ (10th Cir. No. 13-4151, filed 07/16/15). A Utah officer stopped a bicycle without a headlight at night in a parking lot. After stopping Archuleta, the officer inquired what as to the contents of a black bag Archuleta was carrying on his back and was told it contained a firearm (disassembled and unloaded). The officer removed the bag and put it on the hood of the car. He then ran a warrants and records check and found a prior misdemeanor conviction for drugs. The bicyclist then admitted to the officer he was a current drug user. The officer arrested Archuleta, and he was eventually charged with being a drug user in possession of a firearm in violation of 18 U.S.C. § 922(g)(3). Archuleta moved to suppress the evidence obtained during his encounter with the police. The district court granted Mr. Archuleta’s motion to suppress and excluded from evidence his statements and the items seized from his possession. The government appealed. The Tenth Circuit affirmed. .The court’s ruled there was insufficient reasonable suspicion to extend the initial stop to question Archuleta about his criminal history. It said the following four factors cited by the government did not amount to reasonable suspicion: : (1) Mr. Archuleta’s possession of the firearm; (2) the time of day (approximately 1:25 a.m.); (3) the “high-crime area”; and (4) Mr. Archuleta’s criminal history.
State v. Cox, ___ Kan.App.2d ___, ___ P.3d ____ (No. 112387, filed 04/10/15). Cox left stuff, including her purse and some drugs, in a friend's car. That friend got stopped by a trooper who suspected her of identity theft. The friend told the trooper she did not have any ID, but the trooper noticed that several bags, including two purses, were in the back of the friend's vehicle. The driver told the trooper the bags belonged to Cox. The trooper called Cox to verify. She verified, and described the bags, and even some of the contents. The trooper acknowledged that Cox never gave him consent to open her bag, and further acknowledged that Cox never granted him permission to search for a wood sander she claimed would be in Buckle bag. The district court's decision to suppress the evidence is affirmed. Any warrantless search is per se unreasonable unless it falls within one of the exceptions to the search warrant requirement recognized in Kansas. The State has the burden to show an exception, and did not present sufficient evidence of implied consent. Nor does good faith excuse the warrantless search. The trooper was not relying in good faith on a search warrant later found to be invalid or on a statute later declared unconstitutional. Although his motivation for opening Cox's Buckle bag may have been benign, the fact remains that he violated Cox's constitutional rights by searching her bag without a warrant and without her consent. "This case presents a situation where the exclusionary rule should be applied in order to deter [the trooper] and other law enforcement officers from making the same type of mistake in the future." Pierron, J. dissents, and would find the search was reasonable.
City of Los Angeles, California v. Patel, ___ U.S. ___, 135 S.Ct. 2443 (No. 13–1175, filed 06/22/15). Los Angeles requires hotel operators to record and keep specific information about their guests on the premises for a 90-day period. These records “shall be made available to any officer of the Los Angeles Police Department for inspection . . . at a time and in a manner that minimizes any interference with the operation of the business,” §41.49(3)(a), and a hotel operator’s failure to make the records available is a criminal misdemeanor, §11.00(m). Respondents, a group of motel operators and a lodging association, brought a facial challenge to §41.49(3)(a) on Fourth Amendment grounds. The District Court entered judgment for the City, finding that respondents lacked a reasonable expectation of privacy in their records. The Ninth Circuit subsequently reversed, determining that inspections are Fourth Amendment searches and that such searches are unreasonable under the Fourth Amendment because hotel owners are subjected to punishment for failure to turn over their records without first being afforded the opportunity for precompliance review. The Supreme Court, in a 5-4 decision, agreed with the Ninth Circuit. It held the ordinance is facially unconstitutional because it fails to provide hotel operators with an opportunity for precompliance review. The holding does not call into question those parts of the ordinance requiring hotel operators to keep records, nor does it prevent police from obtaining access to those records where a hotel operator consents to the search, where the officer has a proper administrative warrant, or where some other exception to the warrant requirement applies.
Kingsley v. Hendrickson, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 14–6368, filed 06/22/15). Kingsley was awaiting trial in county jail. Officers forcibly removed him from his cell when he refused to comply with their instructions. Kingsley filed an excessive force complaint against two of the officers. The District Court instructed the jury that Kingsley was required to prove, inter alia, that the officers “recklessly disregarded [Kingsley’s] safety” and “acted with reckless disregard of [his] rights.” The jury found in the officers’ favor. Kingsley appealed. The Seventh Circuit held the law required a subjective inquiry into the officers’ state of mind, i.e., whether the officers actually intended to violate, or recklessly disregarded, Kingsley’s rights. The United States Supreme Court reversed. Under 42 U. S. C. §1983, a pretrial detainee must show only that the force purposely or knowingly used against him was objectively unreasonable to prevail on an excessive force claim. The determination must be made from the perspective of a reasonable officer on the scene, including what the officer knew at the time, see Graham v. Connor, 490 U. S. 386, and must account for the “legitimate interests [stemming from the government’s] need to manage the facility in which the individual is detained,” appropriately deferring to “policies and practices that in th[e] judgment” of jail officials “are needed to preserve internal order and discipline and to maintain institutional security,” Bell v. Wolfish, 441 U. S. 520, 540, 547. Pp. 5–7.
City of Atwood v. Pianalto, ___ Kan. ___, ___ P.3d ___ (No. 109796, filed 05/22/15). An officer stopped Pianalto for speeding and found he was intoxicated. The reason for the stop was speeding, but the speed limit sign where the stop occurred had been knocked down. Pianalto contended the speed limit increased as a matter of law on the seemingly unposted roadway, so the officer had no basis to pull Pianalto over for speeding. The Court rejected his argument and affirmed the conviction.
American Civil Liberties Union v. Clapper, ___ F.3d ___ (2nd Cir. No. 14-42, filed 05/07/15). Bulk telephone metadata collection by the NSA is illegal. Section 215 of the Patriot Act (50 U.S.C. § 1861) does not authorize indiscriminate data collection, but the Court does not rule on the constitutional arguments.
State v. James, ___ Kan. ___, ___ P.3d ___ (No. 106083, filed 05/08/15), reversing 48 Kan. App. 2d 310, 288 P.3d 504 (2012). Searches of cell phones incident to arrest are unconstitutional. Police stopped James for having a headlight out, and smelled the odor of alcohol coming from James. The officer went to speak to the passenger and saw an open container of alcohol behind the driver's seat. The officer then placed James in handcuffs and gave him Miranda warnings. James admitted there were cups containing alcohol in the console, and admitted to drinking while driving. The officer then searched the vehicle and found marijuana and scales in the glovebox. James claimed that his brother had left the marijuana in the vehicle, and urged the officer to call his brother, thrusting his hip forward so the officer could reach in James's pocket and get his cell phone. The officer asked if there were any text messages related to drug sales on the phone, and James said no. The officer looked at the text messages and saw two recent messages, one saying, "U got green I will meet U somewhere," and another saying,"Hey T-Ray this is Cotie. U got a 20?" James claimed the search for texts was unconstitutional. The Court of Appeals rejected the argument, finding it was a valid search incident to a lawful arrest. The Supreme Court reversed, holding that Riley prohibits searches of cell phones incident to arrest, and there was no voluntary consent where the defendant was under arrest, had been read his Miranda rights, and was handcuffed and flanked by two armed officers. The Court also held that when a statute, such as K.S.A. 22-2501, affords citizens of Kansas greater protections against searches and seizures than the Fourth Amendment to the United States Constitution, the statute governs the permissible scope of state action. When such statutes are either silent or merely codify the federal constitutional standard, however, it is proper for courts to determine the permissibility of state action as a matter of constitutional law. The contrary holding of State v. Julian, 300 Kan. 690, 700-01, 333 P.3d 172 (2014), is overruled.
United States v. Davis, ___ F.3d ___ (11th Cir. No. 12-12928, filed 05/05/15). Davis committed seven separate armed robberies in a two-month period. The government introduced telephone records (historical location records) obtained from MetroPCS for the time period of the robberies, which generally showed Davis in the vicinity at the time of the robberies. Production was pursuant to a court order that clearly-delineated records that were both historical and tailored to the crimes under investigation. Davis contended that location information should be suppressed because the 18 U.S.C. § 2703(d) production of MetroPCS’s records constituted a search under the Fourth Amendment and thus required probable cause and a search warrant. The 11th Circuit disagreed. It said Davis cannot assert ownership or possession of the third-party’s business records he sought to suppress, and had no subjective or objective reasonable expectation of privacy in MetroPCS’s business records showing the cell tower locations that wirelessly connected his calls at or near the time of six of the seven robberies. Even if he had a subjective expectation of privacy, his expectation of privacy, viewed objectively, is not justifiable or reasonable under the particular circumstances of this case.
State v. Mullen, 51 Kan.App.2d 514, 348 P.3d 619 (No. 110468, filed 05/01/15, affirmed, ___ Kan. ___ (No. 110468, filed 04/22/16). A United States Postal Inspector in Kansas City, Missouri, noticed a suspicious package. The inspector contacted the Shawnee Police Department and informed the police he had a suspected drug package addressed to a house on Meadowsweet Lane, Shawnee, Kansas, for delivery that a police K-9 unit had hit on. A detective obtained an anticipatory search warrant for the house on Meadowsweet Lane from a magistrate judge. The anticipatory search warrant required a controlled delivery of the suspected drug package to the house before it granted authority to enter the house. Once the package was delivered, officers entered, and Mullen, post-Miranda, admitted he knew it contained marijuana (2 pounds). Mullen was supposed to receive the package, not open it, then give it to someone else. Mullen argued a controlled delivery required a hand-to-hand delivery between the inspector and Mullen, and not the inspector leaving the package on the steps for someone to retrieve it later. The Court of Appeals disagreed, holding the triggering event for the anticipatory warrant had occurred. And, although Mullen agreed to a bench trial on stipulated facts, and the stipulation contained a waiver of jury trial, the district court failed to personally advise Mullen of his right to a jury trial, and Mullen did not personally waive his right to a jury trial on the record. Since the record is silent on both points, the court reversed his conviction for possession of marijuana with intent to distribute and remand the case for further proceedings for the district court to explain on the record to Mullen his right to a
jury trial.
Rodriguez v. United States, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 13-9972, filed 04/21/15). Following the end of a normal traffic stop and a driver’s refusal to consent (and without reasonable suspicion of a second crime) a vehicle can not be held for a few extra minutes to allow for a dog sniff. The 8th Circuit Court of Appeals held that a few minutes is not unreasonable and that any extra intrusion into an already-detained driver’s time is de minimus. The Supreme Court reversed in a 6-3 ruling, holding that a police stop exceeding the time needed to handle the matter for which the stop was made violates the Constitution’s shield against unreasonable seizures. The sniff in this case occurred seven or eight minutes after the officer issued written warning for the traffic infraction (driving on the shoulder) that justified the stop. The overall stop lasted about 29 minutes. Thomas dissented, reasoning that officer efficiency should not be the defining characteristic of a reasonable duration for a seizure. He noted that if a driver "is stopped by a particularly efficient officer, then he will be entitled to be released from the traffic stop after a shorter period of time than a driver stopped by a less efficient officer. Similarly, if a driver is stopped by an officer with access to technology that can shorten a records check, then he will be entitled to be released from the stop after a shorter period of time than an individual stopped by an officer without access to such technology." He was unwilling to accept that Fourth Amendment protections "are so variable and can be made to turn upon such trivialities.” Thomas, J., dissenting.
State v. Overman, ___ Kan. ___, ___ P.3d ___ (No. 105504, filed 04/17/15). Baxter Spring officers stopped Overman's car because they knew he had a suspended driver's license and past narcotic history. During a pat-down, they found coffee filters on Overman, and a search of the car incident to arrest yielded evidence of manufacturing methamphetamine. A passenger told officers that Overman was a meth cook and there may be syringes and other paraphernalia in the car. Officers searched the car and found indicia of drug activity, then obtained a warrant for the car and seized the drug items from it. Overman claimed that the evidence should be suppressed because the warrantless vehicle search tainted the subsequent warrant and its execution. The Kansas Supreme Court disagreed, finding there was probable cause and therefore the automobile exception applied. It cited the following facts as supporting probable cause: (a) the passenger telling police that syringes with meth residue would be in the car; (b) Overman had admitted ownership of the marijuana and admitted that the pouch in which it was found probably fell off of his lap as he exited the vehicle, i.e., there had been drugs in the vehicle before the stop; and (c) the coffee filters found on Overman's person were unusual items for a person's pocket, but commonly known to be used in the manufacturing of methamphetamine. But cf. State v. Fisher, 283 Kan. 272, 305, 154 P.3d 455 (2007) (discussing legitimate uses for ether). "In short, when the totality of the officers' information is assessed through the lens of a trained law enforcement officer, that evidence supported probable cause to believe that Overman's vehicle contained contraband."
United States v. Huff, ___ F.3d ___ (10th Cir. No. 13-3216, filed 04/14/15). Dana Huff was stopped by Kansas City police in June 2011 for a minor traffic violation. When officers approached, they found a handgun underneath the driver’s seat of Huff’s Isuzu Rodeo and a rifle sitting near a passenger in the vehicle. Huff and the passenger were arrested and Huff was indicted on one count of being a felon in possession of a firearm and one count of possession of an unregistered short-barreled rifle. Huff sought to suppress evidence of the two firearms, arguing the officers lacked reasonable suspicion of criminal activity when searching his vehicle, and that he was unlawfully arrested without a warrant or probable cause to believe he had committed a crime. The district court initially granted Huff's motion, but two days later prosecutors filed a motion to reconsider, claiming Huff had violated an ordinance on transporting loaded firearms which are not in a gun container. The District Court reconsidered and allowed use of the evidence. Huff appealed after conviction and the 10th Circuit affirmed. The judges ruled that while the arresting officers may not have known which ordinance Huff would be charged with violating, the search of his vehicle was still justified. “Upon seeing the uncased weapon, the officers had the requisite probable cause both to conduct a search of the vehicle and to initiate an arrest based upon this weapons violation.” “Whether or not the officers actually had the ordinance in mind when conducting the search or making the arrest makes no difference in this analysis.”
State v. Chapman, ___ Kan.App.2d ___, ___ P.3d ____ (No. 111131, filed 04/10/15). Wichita officers conducted a traffic stop and found several stolen documents in a car. The driver, who had several warrants and wanted to avoid arrest, if possible, named his source for the stolen documents - Mr. Chapman. Officers went to Chapman's house and asked for consent to search. Chapman denied consent. Officers then discovered Chapman was on parole and contacted his parole officer, who told Chapman that due to a recent change in the law, he had to let officers search his house on reasonable suspicion. Officers searched Chapman's house and found indicia of false identification documents and check forging. The day after his arrest, Chapman's parole officer had Chapman sign a document with new conditions of parole, one of which was a consent to search upon reasonable suspicion. Chapman filed a motion to suppress all evidence seized during the search of his house contending that consent was coerced. The State filed a response arguing that the search was authorized by K.S.A. 2012 Supp. 22-3717(k)(3). The Court of Appeals held the search was invalid. It was undisputed that Chapman was not informed of the new conditions of his parole imposed by K.S.A. 2012 Supp. 22-3717(k)(3) until police officers were at his house waiting to search. And while Chapman's PO told him over the telephone of the new conditions of his parole, he did not agree in writing to be subject to a search by law enforcement officers based on reasonable suspicion until the day following the search. K.S.A. 2012 Supp. 22-3717(k)(3) provides that a parolee "shall agree in writing" to be subject to search or seizure by law enforcement officers based on reasonable suspicion. Based on the plain and unambiguous language of the statute, the court held that a parolee's written agreement is, in fact, a condition for a law enforcement officer's search of a parolee's home based on reasonable suspicion. If a parolee's written agreement is not required before law enforcement may conduct a search of a parolee pursuant to K.S.A. 2012 Supp. 22-3717(k)(3), this language would be rendered meaningless. Additionally, the State failed to meet its burden to show that Chapman's consent to the search was unequivocal, specific, and freely given without duress or coercion, express or implied.
Grady v. North Carolina, 575 U. S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 14–593, filed 03/30/15). Petitioner Torrey Dale Grady was convicted in North Carolina trial courts of a second degree sexual offense in 1997 and of taking indecent liberties with a child in 2006. After serving his sentence for the latter crime, Grady was ordered to appear in New Hanover County Superior Court for a hearing to determine whether he should be subjected to satellite-based monitoring (SBM) as a recidivist sex offender. See N. C. Gen. Stat. Ann. §§14–208.40(a)(1), 14–208.40B (2013). Grady did not dispute that his prior convictions rendered him a recidivist under the relevant North Carolina statutes. He argued, however, that the monitoring program—under which he would be forced to wear tracking devices at all times—would violate his Fourth Amendment right to be free from unreasonable searches and seizures. North Carolina courts rejected Grady's arguments. The United States Supreme Court reversed, holding the North Carolina courts must examine whether the State’s monitoring program is reasonable—when properly viewed as a search, which the Supreme Court will not do so in the first instance.
State v. Meitler, ___ Kan.App.2d ___, ___ P.3d ____ (No. 111697, filed 03/27/15, pet. for review filed 04/15/15). Meitler killed another driver after crossing the centerline. Officers had his blood drawn while he was unconscious, and it tested positive for methamphetamine and marijuana.. Meitler moved to suppress the test results based on State v. Declerck, 49 Kan. App. 2d 908, 317 P.3d 794, rev. denied 299 Kan. __ (June 20, 2014), which found that K.S.A. 2011 Supp. 8-1001(b)(2) is unconstitutional. The district court suppressed the evidence from Meitler's blood draw, ruling that Declerck applied to this case, and the good-faith exception to the exclusionary rule did not apply. The Court of Appeals reversed on the good faith issue. The Court held it is applicable to the facts and suppression would serve no valid purpose because the exclusionary rule was aimed at deterring police misconduct, not legislator misconduct. Atchison, J., dissents, stating, "the statute, thus, represents the rare enactment so dramatically at odds with proper legislative purpose and function that the exclusionary rule should be applied regardless of a government agent's good-faith reliance on it. See Illinois v. Krull, 480 U.S. 340, 355, 107 S. Ct. 1160, 94 L. Ed. 2d 364 (1987).
State v. Talkington, ___ Kan. ___, ___ P.3d ___ (No. 107596, filed 03/06/15). Emporia officers went to a residence to locate a subject named in a warrant. Two men, Garrison and Talkington were walking dogs on leashes when officers approached. The men dropped the leashes and ran to the back yard of the home. Garrison owned the home, and Talkington was a social guest. One of the officers went into the backyard, presumably looking for the person named in the warrant, and found a baggie of methamphetamine about 3 to 5 feet from the back door of the residence and 20 yards from the property line. Both men were arrested, and both had other drugs on their person. The district court suppressed the evidence, holding the state failed to prove an applicable exception to the warrant requirement. The Court of Appeals reversed. The Supreme Court reversed the Court of Appeals and affirmed the trial court, finding no applicable exception. After Florida v. Jardines, 569 U.S. __ 133 S. Ct. 1409, 1417, 185 L. Ed. 2d 495 (2013), a search occurs under the Fourth Amendment to the United States Constitution when: (1) the government obtains information by physically intruding on a constitutionally protected area, i.e., persons, houses, papers, or effects; or (2) invades a subjective expectation of privacy that society recognizes as reasonable. While the lack of a privacy fence weighs somewhat in favor of the State, the no trespassing and no solicitation signs, the lack of a path leading to the backyard, the inability to see the area from a public vantage point coupled with the attempt to conceal the baggie, and the partial enclosure all weigh in favor of the district court's finding of curtilage.
Dehner v. Mission Hills, JOCO Dist. Ct. No. 14CV1600 (Div. 2, filed 03/06/14). Suit alleges that Mission Hills' dangerous animal ordinance deprives people of due process. Defendants granted summary judgment on 04/30/15.
City and County of San Francisco v. Sheehan; ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 13-1412, 05/18/15). Two officers and their employer were sued in federal court by a mentally ill person whom the officers had earlier shot during a confrontation at a facility when the person charged the officers with a knife while screaming that she was going to kill them. The question whether 42 U.S.C. §12132 “requires law enforcement officers to provide accommodations to an armed, violent, and mentally ill suspect in the course of bringing the suspect into custody,” is dismissed as improvidently granted. Certiorari was granted on the understanding that San Francisco would argue that Title II of the ADA does not apply when an officer faces an armed and dangerous individual. Instead, San Francisco merely argues that Sheehan was not “qualified” for an accommodation, §12132, because she “pose[d] a direct threat to the health or safety of others,” which threat could not “be eliminated by a modification of policies, practices or procedures, or by the provision of auxiliary aids or services,” 28 CFR §§35.139(a), 35.104. This argument was not passed on by the court below. The decision to dismiss this question as improvidently granted, moreover, is reinforced by the parties’ failure to address the related question whether a public entity can be vicariously liable for damages under Title II for an arrest made by its police officers. On the Fourth Amendment issue, the officers are entitled to qualified immunity from liability for the injuries suffered by Sheehan. There is no doubt that officers could have opened her door the second time without violating her rights had Sheehan not been disabled. Their use of force was also reasonable. The only question therefore is whether they violated the Fourth Amendment when they decided to reopen Sheehan’s door rather than attempt to accommodate her disability. Because any such Fourth Amendment right, even assuming it exists, was not clearly established, the officers are entitled to qualified immunity. Likewise, an alleged failure on the part of the officers to follow their training does not itself negate qualified immunity where it would otherwise be warranted.
Brown v. Nero, ___ S.W.3d ___, 2015 WL 5666172 (Tx. Ct. of Appls. 09/22/ 2015). Brown was terminated after she allegedly used drugs and was untruthful during the Department's investigation. The Civil Service board reinstated her, finding she was not untruthful and was justified in using the drugs. Prior to their decision, prosecutors issued the Chief a latter saying that Based on Brown's untruthfulness, they would not file her cases. The Chief reinstated her, but then fired her again the next day, calling it a non-disciplinary termination for failure to meet the essential functions of the job. Brown alleged that since the second termination was based on the same alleged misconduct, she should a have a right to appeal to the civil service board. The Court of Appeals agreed. They said the Chief "allowed the unilateral decision of elected officials to circumvent the protections of the Civil Service Act, " and found the Act was intended to prevent this sort of scenario.
Aldaba v. Pickens, ___ F.3d ___ (10th Cir. No. 13-7034 & 13-7035, filed 02/04/15).
Johnny Manuel Leija was in a hospital battling pneumonia when he had a run in with three Oklahoma officers and later died. His mother sued the officers who were granted summary judgment on all claims except excessive force. The officers appealed. The Circuit affirmed denial of summary judgment. The undisputed facts showed that officers used a taser to subdue Leija whose only offense was attempting to leave the hospital against medical advice. The medical examiner testified the taser shots “certainly could” have increased Mr. Leija’s need for oxygen and he further testified the exertion caused by Mr. Leija’s physical struggle with the officers “exacerbated his underlying pneumonia.” Mr. Leija’s treating physician also testified that placing a man in the prone position with his hands cuffed behind his back could compromise his body’s ability to inhale and get oxygen. "The situation the police officers faced in this case called for conflict resolution and de-escalation, not confrontation and tasers." "Here, we conclude that Graham, Casey, Cruz, and the other pertinent authorities sufficiently put Appellants on notice that it is not objectively reasonable to employ a taser as the initial use of force against a seriously ill, non-criminal subject who poses a threat only to himself and is showing only passive resistance, regardless of whether they provide a warning first." Phillips, Circuit Judge, dissents.
John Doe versus Board of Police Commissioners, court and case number unknown (profiled on KCTV 10/20/15). Kansas City police board pays $1.5 million to settle officer's lawsuit. The board that oversees the Kansas City Police Department agreed to pay out $1.5 million to settle a lawsuit filed by a police officer. KCTV5 has been investigating the case. KCTV5 has been working for weeks to confirm the lawsuit even existed since a judge sealed the case, which even went to a jury. Sources tell KCTV5 that an officer filed the suit, claiming sensitive medical information was revealed while he was a cadet attending the police academy. The officer, who is still on the force, sued and won. It's unknown when the lawsuit was filed. Sources tell KCTV5, the jury awarded much more than the department will be paying but both sides agreed on the $1.5 million settlement. The Kansas City Police Department is self-insured, which means the department will have to absorb the costs through its budget. KCTV5 is working to get this case unsealed, to find out exactly how sensitive medical information was revealed about this officer and if the department is doing anything to prevent this from happening again.
Kunisch and Norberg v. Badger Guns, ___ F.Supp. ___ (Case No. unknown, profiled on Findlaw 10/15/15). Weapons dealer Badger Guns was found liable for the shooting of two police officers. Relying on an exception to a federal law -- which generally does not hold gun shops liable for weapons used in crime -- a Milwaukee jury awarded a $5 million judgment for the officers. This case was based on an exception that says if the seller knew or should have known the guns were being used to commit crimes it can be held responsible for the sale. Kunisch and Norberg were on their first night of patrol when they were both shot in the head by Julius Burton. Burton testified from prison that Badger Guns was the go-to place for illegal weapon purchases in Milwaukee. Six other officers had been injured by Badger's Guns in 20 Months. Burton, who was 18 when he committed the crime, purchased the gun from Badger using a straw man because he was under 21. There are reportedly more such cases to come. On the court's docket in May, a similar lawsuit also brought by two Milwaukee police officers injured in the line of duty. The suit was brought by the officers with the support of the Brady Campaign to Prevent Gun Violence. In a statement, the campaign's president, Dan Gross, said, "This case should serve as a warning to all gun dealers who resort to irresponsible and unsafe business practices ... With 89 people dying every day from guns, Americans have had enough of the special rules that make gun companies richer and place ordinary people in danger of being shot and killed."
The Heirs of Walter Scott v. City of North Charleston, South Carolina, court and case no. unknown. Profiled in Police Magazine on 10/09/15. City Council officials announced approval of a $6.5 million settlement with the Walter Scott family during Thursday night's meeting. The North Charleston City Council approved the settlement, the largest of its kind in the state of South Carolina, by a 10-0 vote. Scott was killed April 4 during a traffic stop by former officer Michael Slager. The police department at first called it a clean shooting. But a cellphone video by a bystander called that into question and led to murder charges for Slager. The criminal investigation continues.
The Heirs of Freddie Gray v. City of Baltimore, court and case no. unknown, published in the USA Today on 9/8/15. The city of Baltimore has reached a $6.4 million settlement in a lawsuit filed by the family of Freddie Gray, the 25-year-old man black man who died in April after suffering a neck injury while in police custody, multiple media outlets were reporting Tuesday. The settlement is expected to be approved Wednesday at a meeting of the city's Board of Estimates, which oversees city spending, The Baltimore Sun reported. Last week a judge ruled that the six police officers charged in the connection with Gray's death can be tried separately. The six officers have pleaded not guilty to charges ranging from false imprisonment to involuntary manslaughter. Gray died of a severe neck injury after being handcuffed and restrained inside the police vehicle April 12. Gray's death triggered widespread protests, accompanied by looting and arson in Baltimore, and prompted a national outcry.
Apodaca v. Willmore, ___ Kan.App.2d ___, ___ P.3d ____ (No. 111987, 05/15/15, pet. for review granted 01/25/16). The Kansas Court of Appeals, as a matter of first impression, held the "firefighter's rule" applied to law enforcement officers, barring their negligence claims from injuries suffered while responding to emergencies in their official capacity. At 3:30 a.m., Mathew Willmore fell asleep while driving his F-150 pickup northbound on K-177, and rolled the truck across the median where it became disabled in the southbound lane of traffic. Officer Juan Apodaca responded to a dispatch call about the accident. As Officer Apodaca approached the scene at a high rate of speed, he observed a vehicle in the northbound lane with headlights and emergency flashers illuminated, approximately one mile away. Although Office Apodaca believed the illuminated vehicle was Willmore's, it was actually a witness's vehicle. Officer Apodaco did not see Willmore's disabled vehicle in the southbound lane of traffic, and subsequently collided with the vehicle at 104 miles per hour. When test results showed Willmore had a blood alcohol level of .103, Officer Apodaca sued Willmore for negligence. Willmore successfully moved for summary judgment under the "firefighter's rule," and Apodaca appealed to the Kansas Court of Appeals. On review, the Court of Appeals explained that under the rule adopted in Calvert v. Garvey Elevators, Inc., 236 Kan. 570, 694 P.2d 433 (1985), a firefighter generally cannot recover for injuries caused by the wrong that initially necessitated his or her presence at the scene of an emergency. Although the court recognized it had not previously decided whether the "firefighter's rule" also applied to law enforcement officers, it explained the general rationale behind the rule was that the general public should not be discouraged from calling emergency personnel because of a fear of incurring liability. The court concluded this same rationale should apply to law enforcement officers, supported by other jurisdictions' rulings on the issue. The court held that Apodaca's claims were barred by the firefighter's rule, and affirmed summary judgment in favor of Willmore.
Melendres v. Arpaio, ___ F.3d ___ (9th Cir. No. 13-16285, filed 04/15/15). In an civil rights action against Sheriff Joseph Arpaio and the Maricopa County Sheriff's Office, alleging that defendants have a custom, policy and practice of racially profiling Latino drivers and passengers, and of stopping them pretextually under the auspices of enforcing federal and state immigration-related laws, the district court's judgment is affirmed in part and vacated in part where: 1) the Maricopa County Sheriff's Office improperly was named as a party in the action; 2) the court did not clearly err in finding that a) defendant's unconstitutional policies extended beyond the saturation patrol context, and b) the named plaintiffs had standing to assert the claims of absent class members who were stopped during non-saturation patrols; 3) the injunction was not overbroad simply because it included non-saturation patrols; and 4) the provisions of the injunction which broadly require the appointed Monitor to consider the internal investigations and reports of officer misconduct created a problem to the extent that such investigations and reports were unrelated to the constitutional violations found by the district court
Quinn v. Young, ___ F.3d ___ (10th Cir. No. 13-2074, filed 03/13/15). The Tenth Circuit held that officers were entitled to qualified immunity and remanded the case for entry of judgment. An Albuquerque Sgt. developed an undercover "sting" operation. During one such sting, officers placed a backpack containing beer, cigarettes, and a laptop near a public ATM and observed two adults pick up the backpack and walk to a nearby diner. As they inspected the backpack's contents, officers confronted and arrested the adults for larceny, although the charges were later dropped. The arrestees filed suit under 42 U.S.C. § 1983, alleging violation of their Fourth Amendment rights. The district court denied the defendants' motion for summary judgment on qualified immunity grounds, finding there were fact issues as to whether the officers had probable cause to arrest, and that case law on the issue would have put a reasonable officer on notice that he or she could not make a lawful arrest for larceny unless there was probable cause to suspect the arrestee intended to permanently deprive the owner of his or her property. The Tenth Circuit focused on whether clearly established case law would have placed similarly-situated officers on notice that they had no probable cause to arrest in a larceny sting operation. The court was careful to make clear that sting operations present a unique situation because unlike a typical larceny investigation, in a sting the officers possess additional knowledge about the origin and ownership of the property at issue, which are both relevant to mens rea. The Tenth Circuit concluded that the general larceny cases relied on by the district court was inapplicable to sting operations and that the plaintiffs failed to identify any on-point case law capable of putting the officers on notice that their conduct was unconstitutional.
Johnson v. United States, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 13-7120, filed 06/26/15). Johnson's enhanced sentence under the Armed Career Criminal Act for having been thrice convicted of crimes involving "a serious potential risk of physical injury to another," violates the due process clause. In this case, the serious risk of violence was attached to the possession of a sawed-off shot gun. Samuel Johnson, an unsympathetic white supremacist from Minnessota, plead guilty to being a felon in possession of a firearm. The government sought an ACCA enhancement, based on his three previous strikes, one of which was a conviction for possessing a sawed-off shot gun. Circuits were split on whether possession of a sawed-off shot gun was a violent crime under the ACCA, and the Supreme Court was originally supposed to decide this issue. After oral arguments, however, the Court called the parties back to argue the constitutional question -- whether the ACCA's residual clause was so vague that it violated due process. Two features of the residual clause conspire to make it unconstitutionally vague. By tying the judicial assessment of risk to a judicially imagined “ordinary case” of a crime rather than to real-world facts or statutory elements, the clause leaves grave uncertainty about how to estimate the risk posed by a crime. At the same time, the residual clause leaves uncertainty about how much risk it takes for a crime to qualify as a violent felony. Taken together, these uncertainties produce more unpredictability and arbitrariness than the Due Process Clause tolerates. This Court’s repeated failure to craft a principled standard out of the residual clause and the lower courts’ persistent inability to apply the clause in a consistent way confirm its hopeless indeterminacy.
Dumler v. Kansas Dept. of Revenue, ___ Kan. ___, ___ P.3d ___ (No. 106748, filed 07/24/15). An officer arrested Dumler for DUI and requested a breath test. Dumler requested several times before the breath test that he be permitted to confer with an attorney, with the last request coming after the oral and written implied consent Under Kansas' Implied Consent Law. The officer never gave Dumler an opportunity to confer with an attorney, and Dumler did not repeat his request for an attorney or request additional testing after his breath test failure. The officer placed Dumler in a holding cell, where he remained for an hour or so before posting bond and being released. Denial of an attorney is a proper subject for an administrative hearing because while 8-1020(h) limits the issues to whether "the test result determined that the person had an alcohol concentration of .08 or greater in such person's breath," a driver must be permitted the opportunity of challenging the efficacy of the State's evidence on this issue. The bright-line test of State v. Tedder, 38 Kan. App. 2d 141, 142-43, 163 P.3d 311 (2007) that the request to consult with an attorney must come after completion of testing is not supported by the language of the statute and Tedder is overruled. A person has no right to consult with counsel before deciding whether to take the requested alcohol testing, but after the test, a person has the unrestricted right to consult with an attorney, period. Denial of that right will result in suppression of the breath test.
State v. Collins, ___ Kan. ___, ___ P.3d ___ (No. 108660 filed 12/23/15). Collins beat his spouse and his felony domestic batter sentence included 24 months of probation. He argued the judge should have been limited to 12 months. The Supreme Court disagreed. It sais that because the legislature has not prescribed a maximum probation term for felony domestic battery convictions, the length of such term is within the sentencing court's discretion.
City of Overland Park v. Lull, ___ Kan.App.2d ___, ___ P.3d ____ (No. 111741, filed 03/13/15). Lull, a second DUI offender, at about 4:15 p.m. one day failed to yield right of way on a left turn and hit a mail truck, flipping it on its side at 79th & Metcalf. He showed signs of intoxication, but refused the PBT and the breath test because his lawyer told him to never take them. His refusal was admitted in his criminal trial despite the fact that Officer Morse failed to read paragraph 7 of the ICA. The Court of Appeals reversed the district court's refusal to suppress Lull's refusal, and held the refusal should have been suppressed because there was no substantial compliance with K.S.A. 8-1001, et seq.
State v. Vrabel, ___ Kan. ___, ___ P.3d ___ (No. 108390, filed 04/24/15), affirming___ Kan.App.2d ___, ___ P.3d ____ (No. 108390, filed 06/14/14/13). A confidential informant (CI) advised Corporal Washington of the Prairie Village Police Department (PVPD) that Vrabel was selling hash. Cpl.Washington had the CI arrange to purchase hash from Vrabel at a grocery store in Leawood. Cpl. Washington did not know where Vrabel was when he spoke to the CI on the phone. The grocery store was selected because it was located on a main road into Missouri, where Vrabel lived, and was one of law enforcement's traditional buy locations. PV coordinated the buy with Leawood Lieutenant Kevin Cauley, but the opinion isn't clear on whether Cauley requested PV's assistance. Vrabel sold hash to the CI at the grocery store in Leawood. The state charged Vrabel with distribution of marijuana and use of a communication facility to sell a controlled substance. Vrabel filed a motion to suppress, arguing that PVPD unlawfully exercised its jurisdiction by "set[ting] up and investigat[ing] a crime" in Leawood. The district court granted the motion. The State filed an interlocutory appeal. The Court of Appeals reversed, holding that Prairie Village police officers were authorized to conduct a controlled drug buy in Leawood under the "request for assistance" exception in K.S.A. 2012 Supp. 22-2401a(2)(b). It found there was "at least an implied agreement for drug -buy assistance between the PVPD and the LPD." Malone, J., concurred, disagreeing that the "request for assistance" exception applied, but finding no violation of Vrabel's constitutional rights. The Supreme Court affirmed the Court of Appeals decision, but agreed with Judge Malone's rationale. It determined that PVPD exceeded its statutory jurisdictional authority when it arranged for a controlled drug buy in Leawood, but held that, under the facts of this case, suppression of the drugs, audio recording, and surveillance photographs was not the appropriate remedy for PVPD's statutory violation. "But before concluding, a word of caution might be in order. Like our sister State to the West: "'[T]his court cannot sanction willful and recurrent violations of the law' and . . . future violations 'may trigger application of the [exclusionary] rule.'" People v. Martinez, 898 P.2d 28, 33 (Colo. 1995) (quoting People v. Wolf, 635 P.2d 213, 217 [Colo. 1981])."
State v. Berney, ___ Kan.App.2d ___, ___ P.3d ____ (No. 111407, filed 07/10/15). Jeramie Berney was convicted of felony theft of a tip jar. On appeal, he challenges the district court's failure to give the jury a limiting instruction after a detective testified that he had found Berney's photo in the "mug system" when creating a lineup—suggesting to jurors that Berney had prior arrests or convictions. The district court's failure to give a limiting instruction that evidence of where the detective got Berney's photo could not be considered in deciding guilt in this case was clear error because no strong evidence was offered at trial. After carefully reviewing the full trial transcript, we conclude that a new trial must be ordered because the jury would have reached a different verdict had the instruction error not occurred.
Elonis v. United States, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 13-983, filed 06/01/15). Elonis, a Pennsylvania resident, was imprisoned for what he wrote on Facebook. He adopted the rap persona Tone Dougie, and made posts that were punctuated by brutally violent language, most of it directed against his estranged wife. He wrote that he would like to see a Halloween costume that included his wife’s “head on a stick.” He talked about “making a name for myself” with a school shooting, saying, “Hell hath no fury like a crazy man in a kindergarten class.” He fantasized about killing an FBI agent. He also said such nice things as, “There’s one way to love you but a thousand ways to kill you;" "I’m not going to rest until your body is a mess, soaked in blood and dying from all the little cuts," and "Fold up your PFA and put it in your pocket. Is it thick enough to stop a bullet?" He was charged with five counts of violating 18 U. S. C. §875(c), which makes it a federal crime to transmit in interstate commerce “any communication containing any threat . . . to injure the person of another.” At trial, Elonis requested a jury instruction that the Government was required to prove that he intended to communicate a “true threat.” Instead, the District Court told the jury that Elonis could be found guilty if a reasonable person would foresee that his statements would be interpreted as a threat. The Third Circuit’s instruction, requiring only negligence with respect to the communication of a threat, is not sufficient to support a conviction under Section 875(c). The instructions were defective because they required only negligence in conveying a threat. The Court did not answer what type of intent was necessary, merely stating "we read into the statute “only that mens rea which is necessary to separate wrongful conduct from ‘otherwise innocent conduct.’” There must have been some awareness of some wrongdoing.
Goldwater Institute v. City of Phoenix, Case No. and court unknown. Profiled in Court Upholds Ban On Phoenix Police Union Work in the Arizona Republic 08/11/15. Judge Katherine Cooper held that a union pay provision in Phoenix's contract was illegal. Phoenix was spending $1.7 million over two years to pay six full-time officers to handle union work and two others to respond to major incidents. The appeals court ruling says there were no specific official duties for the officers when working for union, The state court of appeals upheld the ruling. The Court of Appeals ruling agreed with a Maricopa County Superior Court judge’s finding that the practice used by the city of Phoenix in its contract with the Phoenix Law Enforcement Association violates the state constitution’s gift clause because it doesn’t benefit the public.
President Obama has signed (05/20/15) into law a measure that will require instant nationwide "Blue Alerts" to warn about threats to police officers and help track down the suspects who carry them out, reports USA Today. The Rafael Ramos and Wenjian Liu National Blue Alert Act of 2015 is named for the two New York Police Department officers killed in an ambush attack last December. The law requires the Justice Department to create a notification system relating to assaults on police officers, officers who are missing in the line of duty, and credible treats against law enforcement. The system is modeled after Amber Alerts for abducted children and Silver Alerts for missing seniors. "This was one of our top legislative priorities this session and is a significant development that will help protect the protectors of our communities," said Jon Adler, president of the Federal Law Enforcement Officers Association (FLEOA). "This new system will provide valuable, timely, and location specific information regarding the serious injury and/or line of duty death of a law enforcement officer, while maintaining the anonymity of the law enforcement officer involved."
ACLU v. Superior Court of Los Angeles County, ___ Cal.App.2d ___, No. B259352, filed 05/06/15). The County properly denied open records requests for LPR data. Such data fits within the exemption for investigative records and need not be disclosed.
Univ. of Kansas Hospital Authority v. Unified Gov't. of Wyandotte County, ___ Kan. ___, ___ P.3d ___ (No. 108391, filed 05/22/15), affirming 49 Kan. App. 2d 449, 313 P.3d 60 (2013, No. 108391, filed 09/13/13). Plaintiffs sued to recover the cost of medical treatment provided to an arrested person. The facts are:
1.On November 5, 2008, Highway Patrol Trooper Greg Peters determined a vehicle was speeding in Wyandotte County and pursued it.
2.The driver of the speeding vehicle, Wayne Thomas, eventually crashed.
3.The Trooper arrested and handcuffed Thomas.
4.Trooper Peters drove Thomas to the University of Kansas Hospital, still handcuffed, where nursing personnel advised Peters that Thomas would be admitted.
5.Trooper Peters advised the nurses that Thomas was on a 'police hold'.
6.The next day, hospital personnel advised Peters that Thomas was ready for release.
7.Trooper Peters went to the hospital, handcuffed Thomas and took him to the Wyandotte County jail.
8.Thomas was charged in Wyandotte County District Court with eluding a police officer, a severity level 9, person felony.
9.Mr. Thomas was indigent and had no medical insurance.
10.The reasonable and necessary charges made for his care by plaintiff University of Kansas Hospital Authority totaled $23,197.29.
"11.The reasonable and necessary costs for his care by plaintiff Kansas University Physicians, Inc. totaled $2,311.00."
The district court denied the State's motion for summary judgment and granted summary judgment in favor of KU and against the State. The Supreme Court affirmed based on K.S.A. 22-4612. The statute supersedes the prior policy enunciated in Wesley Med. Center v. City of Wichita, 237 Kan. 807, Syl. ¶¶ 2, 3, 703 P.2d 818 (1985), that a county would be held liable for the medical expenses of all offenders arrested for and subsequently charged with a violation of state law, regardless of which police agency made the arrest or whether such expenses were incurred before or after the offender was placed in the county jail.
Solomon v. State of Kansas, ___ Kan. ___, ___ P.3d ___ (No. 114573, filed 12/23/15). Four district judges challenged 2014 Senate Substitute for House Bill No. 2338 (and HB 2005) which would stop all state funding of the state judiciary system if a court invalidated a change in the way chief district court judges are selected. The Supreme Court has always selected the Chief Judge in each judicial district , but the 2014 legislature mandated that district court judges in each judicial district to elect their own chief judge. Shawnee County District Judge Larry Hendricks struck down the law saying it violated the state’s separation of powers policy. The Supreme Court agreed. It held the bill "represents an impermissible intrusion on the part of the legislative branch into the constitutionally mandated administrative authority of the Supreme Court."
Henderson v. United States, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 13-1487, filed 05/18/15). A court-ordered transfer of a felon's lawfully owned firearms from Government custody to a third party is not barred by 18 U.S.C. section 922(g) if the court is satisfied that the recipient will not give the felon control over the firearms, so that he could either use them or direct their use. Federal courts have equitable authority to order law enforcement to return property obtained during the course of a criminal proceeding to its rightful owner. Section 922(g), however, bars a court from ordering guns returned to a felon-owner like Henderson, because that would place the owner in violation of the law. The Eleventh Circuit Court of Appeals is reversed.
Day v. Colorado, ___ F.Supp.2d ___ (D. Colo. No. ____, filed ____, profiled in the Topeka Capitol Journal 03/05/15). Ten sheriffs from three different states sued Colorado Thursday for legalizing marijuana. The sheriffs from Colorado, Kansas and Nebraska say that Colorado’s 2012 marijuana legalization vote violates federal law and shouldn’t be permitted. “A state may not establish its own policy that is directly counter to federal policy against trafficking in controlled substance,” the sheriffs argue. The lawsuit is the latest legal challenge to legal weed. Separately, Nebraska and Oklahoma have appealed to the U.S. Supreme Court to strike down marijuana legalization in Colorado. The Supreme Court hasn’t said yet whether it will hear that case. And a group of Colorado citizens have filed their own federal challenge, saying marijuana reduces property values. The sheriffs note that more than half of Colorado’s recreational pot sales last year were sold to out-of-state visitors, according to data from Colorado’s marijuana regulators. The sheriffs say the weed is spilling across state lines. Even in Colorado, the sheriffs say, legal weed forces police officers to violate federal drug law. “The scheme enacted by Colorado for retail marijuana is contrary and obstructive” to federal drug laws, the sheriffs argue. The Colorado plaintiffs are Larimer County Sheriff Justin Smith, Yuma County Sheriff Chad Day, Elbert County Sheriff Shayne Herp, Hinsdale County Sheriff Ronald Bruce, Kiowa County Sheriff Casey Sheridan and Delta County sheriff Frederick McKee. The Nebraska plaintiffs are Deuel County Sheriff Adam Hayward, Deuel County Attorney Paul Shaub, Cheyenne County Sheriff John Jenson and Scotts Bluff County Sheriff Mark Overman. The Kansas plaintiffs are Sherman County Sheriff Burton Pianalto and Charles Moser, attorney for Sherman, Wallace and Greeley counties. Colorado’s attorney general, which will defend the state pot law in all three lawsuits, did not immediately respond to the sheriffs’ filing Thursday.
State v. Evans, ___ Kan. ___, ___ P.3d ___ (No. 111143, filed 02/13/15). Judge Russell dismissed two counts of criminal possession of a firearm and one count of possession of marijuana after a prior conviction filed against Richard Evans, III. The court found Evans' prior guilty pleas to be felonies in Missouri, which resulted in suspended imposition sentences (SIS), were not convictions to serve as predicate convictions under K.S.A. 2013 Supp. 21-6304 or K.S.A. 2013 Supp. 21-5706. The district court on its interpretation of State v. Pollard, 273
Kan. 706, 714, 44 P.3d 1261 (2002). The State appealed. The Court of Appeals reversed. Kansas law controls the determination of what constitutes a conviction for predicate offenses. Kansas statutes clearly define a conviction as including a proceeding where a defendant pleads guilty and is found guilty by a tribunal as a result of the plea, even if a sentence has not yet been imposed.
State v. Gray, ___ Kan.App.2d ___, ___ P.3d ____ (No. 112035, filed 10/30/15). Violation of the statutory ban on racial profiling can support a motion to suppress evidence resulting from an illegal stop. The fact that K.S.A. 2014 Supp. 22-4611(c) provides a civil remedy does not preclude a defendant from pursuing his available remedy in the criminal proceedings. However, the district court did not err in concluding that race was not a factor in the stop and its factual findings are supported by substantial competent evidence in the record. In this case a Newton officer stopped Gray's vehicle after it failed to signal a turn. That was after the officer began paying attention to the vehicle thinking it might fit some kind of drug courier profile, and the stop was a pretext to search it for drugs.
State v. Knox, ___ Kan. ___, ___ P.3d ___ (No. 104266, filed 04/10/15). Mr. Knox and a couple of his associates shot and killed Lafayette Morris in Wyandotte County. Knox requested a self-defense instruction based on the fact that no witnesses saw the shooting begin; he argued that Morris could have fired the first shot. But the district court denied the request. The Supreme Court affirmed, finding self-defense factually inappropriate. There was no direct or circumstantial evidence suggesting the victime provoked the confrontation. Further, the circumstantial evidence indicates that Knox and the others ambushed the victim and fired the first (and only) shots.
State v. Brownlee, ___ Kan. ___, ___ P.3d ___ (No. 110262, filed 08/07/15). Brownlee was arraigned for murder on September 12, 2012. At the time, the speedy trial statute required trial within 90 days for persons in custody. K.S.A. 22-3402(1). The speedy trial statute was amended effective July 1, 2012, 64 days after Browlee's crime, to provide in relevant part: "(g) If a defendant, or defendant's attorney in consultation with the defendant, requests a delay and such delay is granted, the delay shall be charged to the defendant regardless of the reasons for making the request, unless there is prosecutorial misconduct related to such delay. If a delay is initially attributed to the defendant, but is subsequently charged to the state for any reason, such delay shall not be considered against the state under subsections (a), (b) or (c) and shall not be used as a ground for dismissing a case or for reversing a conviction unless not considering such delay would result in a violation of the constitutional right to a speedy trial or there is prosecutorial misconduct related to such delay." (Emphasis added.) K.S.A. 2012 Supp. 22-3402. The facts of this case fall squarely within the circumstances described by the second sentence of subsection (g). The district judge erroneously assessed the time between September 28 and October 26, 2012. We have now concluded the time should have been charged to the State. Brownlee does not assert on appeal that his constitutional right to a speedy trial was violated, and he says only that he "may" claim that prosecutorial misconduct had a role in the delay because the State did not secure his presence without alleging or demonstrating that he or his counsel ever sought to have him brought to court. The only speedy trial violation before us is purely statutory, arising out of application of what was then subsection (1)'s and is now subsection (a)'s 90-day limit. Under subsection (g), the legislature, which created the statutory right, has decided to eliminate the remedy for its violation in certain circumstances, providing explicitly that the violation "shall not be used as a ground for dismissing a case or for reversing [Brownlee's] conviction." K.S.A. 2012 Supp. 22-3402(g). We are compelled by this plain language to affirm the district judge's refusal to dismiss this case on statutory speedy trial grounds.
California Tow Truck Association v. City and County of San Francisco, ___ F.3d ___ (9th Cir. No. 13-15614, filed 12/08/15). San Francisco's municipal tow truck permit requirements are not preempted by the Federal Aviation Administration Authorization Act of 1994, 49 U.S.C. § 14501 ("FAAAA"). The scheme requires tow truck drivers and towing firms to obtain permits to operate within the city and county limits. The Ninth Circuit held the scheme was not preempted by the FAAAA because it fell within one of that Act's savings clauses, specifically the "safety exception." The board of supervisors for the city found significant risk to city residents from illegal towing from private lots and specifically the safety risk to the elderly and disabled when cars are so towed. It also looked to a declaration from the police department that highlighted the safety problems in the towing industry in San Francisco, including that the trucks are operated unsafely on city streets, that operators steal from the towed vehicles, and that the operators physically and sexually assault vehicle owners. Thus safety was the motivating factor for the Board of Supervisors. The Court found that the permit scheme had a "significant and logical" relationship to the safety justification, including that requiring a permit provided a tool for policing misconduct and a tool to monitor operators and firms.
State v. Dustin Evans, ___ Kan.App.2d ___, ___ P.3d ____ (No. 112000, filed 10/23/15, pet. for review granted 10/21/16, COA No. 112000, JOCO Dist. Ct. No. 13CR1366 (OPPD Case No. 2013-012964). Judge Ryan dismissed aggravated battery charges against Evans, who ran a sword through his wrestling buddy allegedly because he felt threatened. Judge Ryan held that Evans was immune from arrest pursuant to K.S.A. 21-5231. The Court of Appeals reversed, holding that Ryan failed to view the conflicting evidence in the light most favorable to the state. See also State v. Collins, where David Collins shot drunk former employee Desmond Bowles. Collins reached for his gun to scare Bowles, but the "gun went off," entering Bowles left eye and exiting through his left ear. Thomas County District Judge Glenn Schniffner dismissed the charge against Collins in May 2014. Rork represented Collins.
State v. Hardy, ___ Kan.App.2d ___, ___ P.3d ____ (No. 110982 filed 03/27/15). Hardy shot Flores after Flores allegedly approached Hardy's car and punched Hardy in the face several times. Hardy filed a motion to dismiss alleging self-defense immunity. Rather than conducting a hearing on the motion, the district court reviewed the preliminary hearing transcript and granted the motion. The Court of Appeals reversed. In considering a motion for self-defense immunity under K.S.A. 2014 Supp. 21-5231, a district court must conduct an evidentiary hearing, unless the parties otherwise stipulate to the factual record. The rules of evidence apply. At the hearing, the State has the burden to establish probable cause that the defendant acted without legal justification in using force. The district court must view the evidence in a light favoring the State, meaning conflicts in the evidence must be resolved to the State's benefit and against a finding of immunity.
January 1, 2014 through December 31, 2014 (or thereabouts)
Lane v. Franks, ___ U.S. ___, 134 S.Ct. 2369, 189 L.Ed.2d 312 (2014). Lane, a director of training for an underprivileged youth program at a community college, reported misuse of fund by Suzanne Schmitz, an Alabama State Representative on the colleges' payroll. Schmitz had not been reporting to work. Lane fired her. He was later subpoenaed to testify before a federal grand jury and Schmitz was sentenced to serve 30 months in federal prison. Franks was later hired as Lane's supervisor, and fired Lane, but then rescinded 2 of 29 terminations, not including Lane's. Lane sued Franks and alleged he had violated the First Amendment by firing him in retaliation for his testimony against Schmitz. The district court granted Franks summary judgment, finding the Lane's testimony was not protected by the First Amendment. The Supreme Court reversed. It held the First Amendment protects a public employee who provides truthful sworn testimony, compelled by subpoena, outside the scope of his ordinary job responsibilities. The independent obligation, as a citizen, to speak the truth, renders sworn testimony speech as a citizen different than speech uttered as an employee. The duty to speak the truth sets it apart from speech made purely in the capacity of an employee.
Elli v. City of Ellisville, MO, ___ F.Supp. 2d ___, (USDC ED MO No. 13-711, profiled in ABA Journal, Vol. 99, No. 7, July 2013, preliminary injunction granted 02/03/14). Elli filed a class action alleging that flashing headlights to warn of on upcoming speed trap is protected speech, and city officials retaliated against him for doing so by issuing him a citation. The district court agreed, and issued an injunction. State courts in Florida, Tennessee and Utah have considered the issue. The latter two have sided with the drivers, and Florida passed a law banning prosecutions for flashing headlights. In a ruling issued the week of February 3, 2014, the district court sided with Elli and said his speech was constitutionally protected.
Oregon v. Hill, Case number unknown, Jackson County Justice Court, profiled on PoliceOne.com on 4/15/14. Hill, a truck driver in Grants Pass, OR flashed his headlights to warn a UPS driver coming the other way of a deputy behind him. The deputy pulled over Hill on U.S. Highway 140 in White City and handed him a $260 ticket for improperly using his headlights, saying another deputy had seen the flashing lights from behind the UPS truck and alerted him to stop the log truck because of the signaling. Hill decided to fight the ticket, and on Wednesday, a Jackson County Justice Court judge dismissed the citation, finding that motorists flashing their headlights amounts to speech protected by the Oregon Constitution. Judge Joseph Carter determined the law covering the use of high beams was valid, but was unconstitutional as it was applied by the deputy. "The citation was clearly given to punish the Defendant for that expression," the judge wrote. "The government certainly can and should enforce the traffic laws for the safety of all drivers on the road. However, the government cannot enforce the traffic laws, or any other laws, to punish drivers for their expressive conduct." Dave Fidanque, director of the American Civil Liberties Union of Oregon, noted the Oregon Court of Appeals overturned a traffic law prohibiting horn honking for non-traffic purposes on similar grounds in the 1990s after a number of people got tickets for honking in support of U.S. troops during the first Gulf War. "If the motive of the sheriff's deputies was in fact not to make the roads safer, but to raise more revenue from traffic enforcement, that would be even more reason why it should be unconstitutional," Fidanque said. "If this is part of a pattern, then it probably would be worth us looking into it in more detail." See also Elli v. City of Ellsville, Mo., ___ F.Supp. ___ No. 4:13CV711 HEA (USDC, EDMO, 02/03/14)(same).
Dept. of Homeland Security v. MacClean, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 13-894, filed 01/21/15). MacClean, a former air marshal, was fired after he contacted a reporter and told him about the TSA’s decision to cancel air marshal missions. The DHS argued the MacClean's actions were not entitled to whistle-blower protection because his disclosure was “specifically prohibited by law,” §2302(b)(8)(A)—namely, by 49 U. S. C. §114(r)(1) which gives DHS regulation authority. Regulations do not qualify as “law” under that statute. Congress did not use the phrase “law, rule, or regulation” in the statutory language at issue here; it used the word “law” standing alone. That is significant because Congress generally acts intentionally when it uses particular language in one section of a statute but omits it in another. Russello v. United States, 464 U. S. 16, 23 (1983) . Thus, Congress’s choice to say “specifically prohibited by law” rather than “specifically prohibited by law, rule, or regulation” suggests that Congress meant to exclude rules and regulations.
Holt v. Hobbs, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 13-6827, filed 01/20/15). The Arkansas Department of Correction's grooming policy, which prohibits inmates from growing beards unless they have a particular dermatological condition, violates RLUIPA insofar as it prevents the petitioner from growing a ½ inch beard in accordance with his religious beliefs. Once a burden on religion is shown, the burden shifts to the government to show that substantially burdening the religious exercise of the "particular claimant" is "the least restrictive means of furthering [a] compelling governmental interest." Burwell v. Hobby Lobby Stores, Inc., 573 U. S. ___, ___ (2014); 42 U.S.C. §2000cc-1(a). The Department fails to show that enforcing its beard prohibition against petitioner furthers its compelling interests in preventing prisoners from hiding contraband and disguising their identities.
Cyr v. Addison Rutland Supervisory Union, ___ F.Supp. ___ (D. Vt. 2015). Former Benson, Vermont resident Marcel Cyr settled for$147,500 Monday after winning a lawsuit against the Addison Rutland Supervisory Union. He had been banned from all school grounds in the district because school officials were frightened of him. School officials said they feared for their safety because of Cyr’s physical size, loud voice and sometimes harsh comments he made about the education his son was receiving at Benson Village School. The ACLU took up Cyr’s case on free speech grounds, and in September federal judge J. Garvan Murtha found that Cyr’s rights to free speech had been infringed upon by the school district. In his decision, Judge Murtha wrote that “The ARSU’s categorical ban was not tailored to respond to the specific threat that Mr. Cyr potentially posed, a threat that was never articulated as anything more specific than a potential risk of violence to (the school’s principal and its director of special services) or their staff.”
Watchtower v. City of San Juan, (Watchtower III), ___ F.3d ___ (1st Cir. No. 13-605, 13-1718 & 13-1719, filed 11/20/14). Puerto Rico allows private citizens to maintain gated residential communities that incorporate public streets. The district court solution in this regard was to make municipalities "gather and turn over to the plaintiffs all means of access available to residents of unmanned urbanizations (such as keys, buzzers, or access codes)." The municipalities claimed that the remediation scheme imposed undue administrative burdens on them. The First Circuit did not buy it. The alternative, manning every gate, would have been much costlier. The First Circuit did excise the requirement that, if the communities change their method of entry, they had to provide that new method to the Jehovah's Witnesses within 24 hours. See also Watchtower Bible & Tract Soc'y of N.Y., Inc. v. Sagardía De Jesús (Watchtower I), 634 F.3d 3 (1st Cir.), reh'g denied, 638 F.3d 81 (1st Cir. 2011); Watchtower Bible & Tract Soc'y of N.Y., Inc. v. Colombani (Watchtower II), 712 F.3d 6 (1st Cir. 2013).
Cox v. Denning, ___ F.Supp. 2d ___ (U.S.D.C. Kan. Case no. 12-2571-DJW, filed 09/29/14). In 2009, the Johnson County Adult Detention Center ("Detention Center") implemented a policy of only distributing postcards, privileged mail from attorneys and courts, and pre-approved letters to inmates. Any non-compliant mail was returned to the sender, with a subsequent notice delivered to the inmate. When Nicholas Cox, an inmate, was notified he received four letters that had been returned to their senders at unidentified return addresses, he filed suit for violation of his First Amendments rights. On Cox's motion for summary judgment, the court, citing Turner v. Safley, 482 U.S. 78 (1987), identified the following four factors as controlling: (1) Whether a valid and rational connection exists between the regulation and asserted governmental interest; (2) whether there are alternative means for the inmate to exercise his or her constitutional rights; (3) any effect accommodating the right would have on guards and inmates; and (4) the absence of ready alternatives. The Detention Center claimed its mail policy was rationally related to security and efficiency. The court was unconvinced, however, because the Detention Center failed to present a credible explanation for why a postcard-only policy was more effective at preventing contraband from being introduced than opening letters and inspecting them would be. The court was also skeptical of the Detention Center's efficiency argument because it believed any time saved by not opening envelopes was instead spent returning mail and providing notices to prisoners. Ultimately the court concluded that the Detention Center's mail policy did not support legitimate penological objectives, and it granted Cox summary judgment on his First Amendment claim.
Harris v. Quinn, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 11-681, filed 06/30/14). The Court held, in a 5-4 decision, that unions cannot require home health care workers to pay "fair share fees" to support the union. States cannot compel personal care providers to subsidize speech on matters of public concern by a union that they do not wish to join or support.
McCullen v. Coakley, 568 U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 12-1168, filed 06/26/14.). The Court struck down a Massachusetts law that creates a 35-foot "buffer zone" around reproductive healthcare facilities into which demonstrators are not allowed to enter. A 2008 case, Hill v. Colorado, upheld a similar law against a First Amendment challenge because it (1) addressed a legitimate state concern for the safety and privacy of individuals using the facilities, (2) was "content-neutral" in that it applied to all demonstrators equally regardless of viewpoint, and (3) regulated the "time, place, and manner" of speech without foreclosing or unduly burdening the right of demonstrators to communicate their message. Not so much with the Massachusetts law. The facts indicated most of the problems occurred on Saturdays, and a 7-day per week 35 foot blanket prohibition was not narrowly tailored enough. To meet the narrow tailoring requirement the government must demonstrate that alternative measures that burden substantially less speech would fail to achieve the government’s interests, not simply that the chosen route is easier. The government failed to meet it's burden, and the court held the buffer zone "burden[s] substantially more speech than is necessary to further the government’s legitimate interests."
Town of Greece, New York v. Galloway, 568 U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 12-696, filed 05/05/14). Under the 1983 case Marsh v. Chambers, the Court held that a state legislature could hire a chaplain to deliver a prayer at the beginning of its sessions as long as the practice was not "exploited to proselytize or advance any one, or to disparage any other, faith or belief." The town of Greece’s official policy allows any person of any or no denomination to deliver an invocation at the beginning of town board meetings, and the town does not approve or even examine the prayer in advance. In practice, all but four invocations (two Jewish, one Baha’I, and one Wiccan) have been led by Christians. In a 5-4 decision, the Court held Defendant-town's practice of beginning the monthly town board meetings with a prayer given by clergy selected from the congregations listed in a local directory does not violate the First Amendment's Establishment Clause, where: 1) legislative prayer is not required to be nonsectarian; 2) absent a pattern of prayers that over time denigrate, proselytize, or betray an impermissible government purpose, a challenge based solely on the content of a particular prayer will not likely establish a constitutional violation; and 3) so long as the town maintains a policy of nondiscrimination, the Constitution does not require it to search beyond its borders for non-Christian prayer givers in an effort to achieve religious balancing.
Case Name Unknown - City of Indianapolis - profiled on PoliceOne.com on 03/01/14. The terms of a recently settled lawsuit in Indianapolis, Indiana will require the city's police force to remind officers that it's legal for civilians to videotape on-duty cops, but it will also cost the department more than just that. In addition to having to adopt an official policy recognizing the right for citizens to record law enforcement officials, the City of Indianapolis is also cutting a $200,000 check for a local man who was arrested and injured by police in 2011 after he refused to stop filming a nearby arrest. According to excerpts of the policy published on Thursday by WISH-TV, local law enforcement officials have 60 days to adopt a policy that states “police officers should not interfere with civilians who are observing or recording their actions by video or audio in public, so long as the civilians maintain a safe and reasonable distance if necessary from the scene of a police action, do not physically interfere with the officers’ performance of their duty and do not represent a physical danger to the officers, civilians or others.”
Minnesota Police and Peace Officers Association and the Police Officers Federation of Minneapolis v. The National Football League and the Minnesota Vikings, ___ Minn.App. ___ (No. A15-0317, unpublished opinion filed 08/17/15). The Court is asked to decide the narrow question of whether appellant National Football League’s policy prohibiting firearms within its stadiums violates the Minnesota Citizens’ Personal Protection Act of 2003 (PPA), Minn. Stat. § 624.714 (2014), by precluding off-duty peace officers from carrying their weapons into games played by appellant Minnesota Vikings LLC at TCF Bank Stadium in Minneapolis. The district court ruled that the PPA prevents private-property owners from excluding armed off-duty peace officers. Because the PPA by its plain language does not apply to active licensed peace officers, we reverse and remand.
Henderson v. United States, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 13-1487, filed 05/18/15). Federal courts have power to order that guns taken from an individual during a drug prosecution be transferred when the case is over to a neighbor and a friend to whom the owner wanted to sell them if the court is convinced they won't wind up back in the hands of the convicted felon.
Jackson v. City and County of San Francisco, ___ F.3d ___ (9th Cir. No. 12-17803, filed 03/25/14, cert. denied 06/08/15). San Francisco has two ordinances that limit Second Amendment Rights: (1) requiring handguns in a home to be kept "in a locked container or disabled with a trigger lock that has been approved by the California Department of Justice," and (2) an ordinance generally prohibiting hollow-point ammunition. The Ninth Circuit upheld both, although they are similar to the law struck down in Heller. 26 State Attorney Generals requested the Court to grant certiorari.
Kolbe v. O’Malley, ___ F.Supp. ___ (U.S.D.C. D.C. No. 1:13-cv-02841, filed ____). In what looks to be a terrible ruling for Maryland gun owners a federal judge has essentially ruled that guns that were regulated by the state of Maryland last year, including AR-15 and AK style rifles (as well as other magazine fed, semi-auto rifles with certain features), “fall outside Second Amendment protection as dangerous and unusual arms,” according to a 47 page opinion by U.S. District Judge Catherine C. Blake. Numerous plaintiffs including the Associated Gun Clubs of Baltimore, Maryland Licensed Firearms Dealers Association, Maryland State Rifle and Pistol Association, and the National Shooting Sports Foundation (NSSF), among others which challenged the constitutionality of Maryland’s strict new gun laws. Blake stated:
Upon review of all the parties’ evidence, the court seriously doubts that the banned assault long guns are commonly possessed for lawful purposes, particularly self-defense in the home, which is at the core of the Second Amendment right, and is inclined to find the weapons fall outside Second Amendment protection as dangerous and unusual.
First, the court is not persuaded that assault weapons are commonly possessed based on the absolute number of those weapons owned by the public. Even accepting that there are 8.2 million assault weapons in the civilian gun stock, as the plaintiffs claim, assault weapons represent no more than 3% of the current civilian gun stock, and ownership of those weapons is highly concentrated in less than 1% of the U.S. population.
Palmer v. District of Columbia, Unknown Court and Case Number. A federal judge on Saturday (7/26/14) overturned Washington D.C.'s ban on carrying handguns outside the home, saying it was unconstitutional. "There is no longer any basis on which this Court can conclude that the District of Columbia's total ban on the public carrying of ready-to-use handguns outside the home is constitutional under any level of scrutiny," Judge Frederick Scullin said in an opinion. "Therefore, the Court finds that the District of Columbia's complete ban on the carrying of handguns in public is unconstitutional," he added in his 19-page ruling. The court ordered the city to allow residents to carry handguns outside their homes and to let non-residents carry them as well.
Peruta v. County of San Diego, ___ F.3d ___ (9th Cir. No. 10-56971, filed 02/13/14). California must allow law-abiding citizens to carry concealed firearms in public. San Diego County violates the Constitution's Second Amendment by requiring residents to show "good cause" - and not merely the desire to protect themselves - to obtain a concealed-weapons permit. "The right to bear arms includes the right to carry an operable firearm outside the home for the lawful purpose of self-defense," said Judge Diarmuid O'Scannlain in the majority opinion.
State v. Marcum, ___P.3d ___, 2014 WL 309486 (Okla. Crim. App. 2014)(summary by Ken Wallentine - see also summary by law professor Susan Brenner). Agents charged Marcum, a drug court administrator, and Miller, a prosecutor co-defendant with obstruction of justice during the course of an embezzlement investigation. Miller's boss told him that special agents were in town. This prompted Miller to leave the building suddenly and to quickly send a text message to Marcum. Agents obtained a warrant for Miller’s cell phone text messages. Marcum and Miller convinced the trial judge to suppress evidence of incriminating text messages. In the emerging world of digital privacy, no court had yet squarely decided whether there is an expectation of privacy in text messages. The court held that the Fourth Amendment does not protect a texter's privacy in text messages that are stored by the cell phone service providers of the others to whom they sent text messages. The court considered text messages to be similar to written letters after the letters have been opened by their recipients. The court stated that it need only determine this narrow issue: did Marcum have a reasonable expectation of privacy in the records of the texts she and Miller exchanged that were in the records of Miller's cell phone service provider? The answer is no. "It is like leaving a voice mail message, having the recipient receive and play the message, and then claiming the message is private."
Aipperspach v. McInerney, ___ F.3d ___ (8th Cir. No. 13-2942, filed 09/05/14). The Eighth Circuit Court of Appeals upheld as reasonable the shooting of a man with a BB gun and held that a news helicopter's video of the incident did not provide the perspective of officers on the scene. Riverside officers responded to an unwanted subject call and were told that Al-Hakim, was headed into a nearby wooded area. Officers also learned there might be an unspecified warrant for Al-Hakim's arrest. A Riverside Sgt. fund Al-Hakim and asked him to come up out of a ravine and talk. Al-Hakim refused, and produced what appeared to be a black handgun. In fact, the gun was a Daisy 008 air pistol capable of firing steel BBs or lead pellets. Officers ordered Al-Hakim at least 12 times to drop his weapon. He failed or refused. Four officers fired rounds at Al-Hakim. A news helicopter circling overhead captured the incident on video. Consistent with the officers' version of events, it depicts law enforcement personnel arrayed on the ridge in a half-circle above Al-Hakim, who is sitting at the bottom of a ravine holding a black gun in his left hand. The video shows Al-Hakim slipping and straightening back up. In the process, his left hand moves the gun away from his head, out in front of his body, and sweeps up toward the officers on the ridge. As Aipperspach describes that movement, "as if attempting to surrender." Almost immediately, the video shows Al-Hakim fall as he is struck by multiple bullets. Aipperspach, as the personal representative of the estate of Al-Hakim, filed suit against all the officers on scene and the department and argued that the shooting was excessive force under the Fourth Amendment. The district court granted summary judgment for all officers and the department and held that the shooting was reasonable under the Fourth Amendment. The Circuit noted that the responding officers were confronted with a suspect who appeared to be armed with a handgun, refused at least 12 commands to drop the gun, pointed the gun once at Sergeant Jones, and then waved it at officers in a manner they perceived as a threat of serious bodily injury. The court held that these circumstances were sufficient to provide the officers an objectively reasonable belief that Al-Hakim posed a threat of serious physical harm to the officers. The court further considered with it was proper for the trial court to hold that the news helicopter video did not offer a perspective relevant to determine the reasonableness of the of the officer's actions on the ground. The video taken from high above the scene shed no material light on the question of whether officers perceived Al-Hakim as an imminent threat.
United States v. Denson, 2014 U.S. App. LEXIS 24616 (10th Cir. No. 13-3329, Kan. Dec. 30, 2014) Officers went to Denson’s house to serve an outstanding warrant for his arrest after Denson stopped reporting to his probation officer. After using a handheld Doppler radar device and developing other evidence, the officers believed Denson was inside the house. The officers entered the house and arrested Denson. While conducting a protective sweep, officers saw several firearms in a closet and seized them. The government indicted Denson for possession of a firearm by a convicted felon. First, Denson argued the district court should have suppressed the firearms the officers seized from his house. The court disagreed. An arrest warrant implicitly carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is inside. Finding there was probable cause, the Court said, "Probable cause doesn’t require proof that something is more likely true than false. It requires only a “fair probability,” a standard understood to mean something more than a “bare suspicion” but less than a preponderance of the evidence at hand. See United States v. Ludwig, 641 F.3d 1243, 1252 & n.5 (10th Cir. 2011) (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983))." In this case, the court held the officers established that Denson was inside the house when they entered. First, Denson had recently opened a utility account for the house and as far as the officers knew, Denson did not have another residence. Second, the officers knew Denson had not reported any earnings, which suggested Denson did not work and might be home at 8:30 a.m. on a weekday. Third, Denson had absconded and was hiding from law enforcement. Fourth, the electric meter on the house appeared to be running very fast, an indication that someone might be inside using electrical devices. The court declined to rule on whether the officers’ use of the Doppler radar device violated the Fourth Amendment. The court found that based on the facts outlined above, the officers independently established Denson was inside the house. However, the court cautioned that the government’s warrantless use of such a powerful tool to search inside homes poses grave Fourth Amendment questions. Second, Denson argued the officers discovered the firearms as the result of an unlawful protective sweep. The court disagreed. The officers knew Denson was a fugitive with a history of violent crime. In addition, the officers knew Denson was a gang member with violent associates. Finally, the officers knew a second person lived in Denson’s house who was wanted on an outstanding warrant. Based on these facts, the court concluded it was reasonable for the officers to believe Denson might not be alone in the house and that anyone else inside could be dangerous. Finally, Denson argued the officers unlawfully seized the firearms they found in the closet. Denson claimed at the time of the search, the officers could not exclude the possibility the guns belonged to the other resident of the home and not him. Again, the court disagreed. A convicted felon, such as Denson, violates federal law by actually or constructively possessing firearms. A felon constructively possesses a firearm if he “knowingly holds the power to exercise or control over them.” In this case, Denson listed himself with the utility company as the primary account holder and the officers found the firearms in an unlocked closet that could be accessed by either Denson or the other resident. As a result, the court held when the officers found the firearms, they could reasonably believe the guns were accessible to Denson; therefore, he constructively possessed them.
United States v. Hood, 2014 U.S. App. LEXIS 24239 (10th Cir. 13-6182, Okla. Dec. 17, 2014)
Officers suspected Milton was involved in a string of burglaries. The officers went to Milton’s apartment complex, located in a high-crime area of the city, and learned that Milton lived in apartment 108. After knocking and identifying themselves, the officers heard noise coming from inside the apartment, but no one answered the door. After a few minutes, the officers walked over to the apartment complex’s parking lot to inspect a car they suspected belonged to Milton. While the officers were in the parking lot, a resident shouted to them that someone was running from apartment 108. Two officers ran back to the complex and encountered a man, later identified as Hood. When the officers saw Hood, he was facing a corner of the building with his back toward the officers. Although it was an unseasonably warm day, Hood was wearing a winter jacket and making motions as if he was trying to remove something from his inside jacket pocket. Believing that Hood might be reaching for a weapon, the officers drew their firearms and ordered Hood to the ground. Hood went to the ground, but he still appeared to be grasping for something inside his jacket. When one of the officers asked Hood if he had a firearm underneath him, Hood replied, “I don’t know.” The officers handcuffed and frisked Hood, removing a pistol from the right inside pocket of Hood’s jacket. The government indicted Hood for being a felon in possession of a firearm. Hood filed a motion to suppress the pistol seized from his jacket, arguing the officers did not have reasonable suspicion to stop and frisk him. Additionally, Hood argued the officers’ use of force during the stop was unreasonable. The court disagreed. First, the officers were investigating a burglary in a high-crime area. Second, a resident of the apartment complex alerted the officers that a person was running from the apartment where their suspect lived. Third, when the officers confronted Hood he was wearing a winter jacket, despite the warm day. Fourth, the officers saw Hood fumbling in his jacket pockets, which they believed might indicate he was attempting to remove a weapon. Under these circumstances, the court concluded the officers were justified in drawing their firearms and ordering Hood to the ground.
Heien v. North Carolina, 74 U.S. ___, 135 S. Ct. 530, 190 L. Ed. 2d 475 (No. 13-604, filed 12/15/14). An officer's mistake of law can give rise to reasonable suspicion to stop a car. Heien was driving a car which undisputedly had only one of its two rear brake lights working. The North Carolina statute at issue refers to “a stop lamp,” suggesting the need for only a single working brake light, but it also provides that “[t]he stop lamp may be incorporated into a unit with one or more other rear lamps,” and another subsection of the same provision requires that vehicles “have all originally equipped rear lamps or the equivalent in good working order,” arguably indicating that if a vehicle has multiple “stop lamp[s],” all must be functional. A deputy stopped Heien’s car, ultimately finding cocaine in it. Along with charging Heien with cocaine trafficking, the deputy cited Heien for a non-working brake light, and the state trial court agreed that the stop was valid based on this observed traffic violation. Heien then pled guilty conditionally, reserving his right to appeal the denial of his suppression motion. The Supreme Court upheld the stop. "To be reasonable is not to be perfect, and so the Fourth Amendment allows for some mistakes on the part of government officials, giving them 'fair leeway for enforcing the law in the community’s protection.' Brinegar v. United States, 338 U. S. 160, 176 (1949) .'" In Michigan v. DeFillippo, the Court had ruled that mistaken reliance on an ordinance later held unconstitutional “does not undermine the validity of the arrest.” Cf. Martin v. KDOR, 285 Kan. 625 (2008)(reaching opposite conclusion). It saw reasonable mistakes of law as no different than mistakes of fact.
Simpson v. Kansas, ___ F.3d ___ (10th Cir. No. 13-3272, filed 11/26/14). The Tenth Circuit held that a driver's arrest for failing to wear her seatbelt did not violate the Fourth Amendment. Olga Simpson was driving her children home from school when she was pulled over by Trooper Brame for failing to wear her seatbelt. Trooper Brame issued Simpson a citation with a $169 fine, which Simpson complained she could not afford. As Trooper Brame returned to his vehicle, he saw Simpson tearing up the citation, which caused him to believe she did not intend to honor it. Trooper Brame decided to arrest Simpson and, after a struggle, he shoved her to the ground, put his weight on her, and completed the arrest. The entire interaction was captured by a video recording, and Simpson eventually filed suit under 42 U.S.C. § 1983. Simpson's claims were dismissed on summary judgment, which she appealed. The Tenth Circuit initially noted that violation of K.S.A. 8-2503(a)(1), which requires adults in cars to wear seatbelts, was a misdemeanor. Because the Fourth Amendment permits arrest if an officer has probable cause to believe even a very minor criminal offense has been committed in his or her presence, the court agreed that Trooper Brame had probable cause to arrest Simpson. Simpson argued that even if Trooper Brame initially had probable cause, it was lost when he issued her a citation instead of arresting her. The Tenth Circuit disagreed, explaining that Kansas law contemplates that a violator of traffic laws must make a written promise to appear in court by signing the citation. Because Simpson tore up her citation and never signed it, the court concluded that Trooper Brame did not require a new justification for arresting her. Finally, based on its review of the video footage, the court concluded that Trooper Brame did not use excessive force in arresting Simpson, citing its holding in Meacham v. Frazier, 500 F.3d 1200 (10th Cir. 2007).
Commonwealth v. Baust, Virginia Commonwealth Court No. CR14-1439, profiled on hamptonroads.com 10/30/2014. A criminal defendant can be compelled to give up his fingerprint, but not his pass code, to allow police to open and search his cellphone. Prosecutors allege that Baust strangled his wife and said video equipment in Baust's bedroom may have recorded the couple's fight. If so, they alleged, the the video could be on his cellphone. Judge Steven C. Frucci ruled this week that giving police a fingerprint is akin to providing a DNA or handwriting sample or an actual key, which the law permits. A pass code, though, requires the defendant to divulge knowledge, which the law protects against
Tracey v. Florida, ___ Fla.2d ___ (No. SC11-2254, filed 10/16/14). Officers used a Stingray to track a drug dealer's movements on public roadways. The Florida Supreme Court suppressed the evidence, holding Tracey had a subjective expectation of privacy in the location signals transmitted solely to enable the private and personal use of his cell phone, even on public roads, and that he did not voluntarily convey that information to the service provider for any purpose other than to enable use of his cell phone for its intended purpose. Such a subjective expectation of privacy of location as signaled by one’s cell phone—even on public roads—is an expectation of privacy that society is now prepared to recognize as objectively reasonable under the Katz test. Therefore, we hold that regardless of Tracey’s location on public roads, the use of his cell site location information emanating from his cell phone in order to track him in real time was a search within the purview of the Fourth Amendment for which probable cause was required. Because probable cause did not support the search in this case, and no warrant based on probable cause authorized the use of Tracey’s real time cell site location information to track him, the evidence obtained as a result of that search was subject to suppression.
United States v. Salas, 2014 U.S. App. LEXIS 12387 (10th Cir. No. 13-7036, Okla. July 1, 2014). A police officer stopped Salas after the officer saw Salas' car twice cross the fog line on the right side of the highway. After issuing Salas a warning ticket for failure to stay in his lane, the officer returned Salas' documents and told him he was "good to go." Salas thanked the officer for giving him a warning, shook the officer's hand and began to leave. The officer asked Salas if he had time for a few more questions, and Salas replied, "Sure." After Salas denied having drugs in his car, the officer asked if he could search the vehicle. Salas consented to the search. The officer opened the trunk, which contained a suitcase. Inside the suitcase, the officer found approximately twenty pounds of methamphetamine. Salas was charged with possession with intent to distribute methamphetamine. Salas argued the methamphetamine should have been suppressed because the officer did not have reasonable suspicion or probable cause to stop him. Salas also argued he did not voluntarily give the officer consent to search the car. The court disagreed. Okla. Stat. § 11-309 provides that "a vehicle shall be driven as nearly as practicable entirely within a single lane." The Tenth Circuit has held that a single violation of a traffic statute virtually identical to § 11-309 can provide reasonable suspicion to conduct a traffic stop. Here, the district court found that the officer saw Salas' vehicle cross the fog line twice. Consequently, the officer had reasonable suspicion that Salas violated § 11-309 and was justified in conducting a traffic stop. Next, the officer's dash camera video showed that when the officer asked Salas if he could search the car, Salas replied, "Sure." The officer then asked Salas, "You sure you don't mind?" Salas replied, "No." Salas' relaxed demeanor and lack of physical coercion or intimidating body language or tone by the officer led the court to conclude Salas voluntarily consented to the search of his car.
Leatherwood v. Welker, ___ F.3d ___ (10th Cir. No. 13-6152, filed 07/08/14). Leatherwood was convicted of crimes in Oklahoma and placed on probation. His probation officer received information from Leatherwood's ex-wife that Leatherwood raped his current girlfriend and had guns. A district attorney received information from a confidential informant that Leatherwood had alcohol and sexual materials at home. The probation officer conducted a warrantless search of Leatherwood's home. Leatherwood sued. The probation officers appealed the denial of summary judgment and qualified immunity to the Tenth Circuit Court of Appeals. The Circuit held defendants had reasonable suspicion that Mr. Leatherwood committed probation violations, and thus the search of his home did not violate his Fourth Amendment rights.
United States v. Davis, 2014 U.S. App. LEXIS 8583 (10th Cir. No. 13-3037, Kan. May 7, 2014). In March 2011, an investigation into a string of armed robberies led police officers to suspect the robbers were using a car belonging to Baker's girlfriend. Police officers installed a GPS tracking device onto the rear bumper of the car while it was parked at an apartment complex. Police officers also obtained a warrant to track the GPS signal from Baker's cell phone. Immediately after the robbery of an Overland Park Radio Shack store, FBI agents and police officers used a combination of GPS coordinates from the car and Baker's cell phone to locate and stop the car containing Baker and Davis. Inside the car, officers found evidence connecting Baker and Davis to the robbery. The government charged Davis with a variety of criminal offenses. Davis moved to suppress the evidence. The court held Davis did not have standing to object to the stop. Because Davis did not own or regularly drive the car to which the GPS device was attached, the court concluded he did not have standing to object to the evidence obtained as a result of the alleged illegal placement of the GPS device on the car and its subsequent monitoring.
United States v. Garcia, 2014 U.S. App. LEXIS 8816 (10th Cir. No. 13-2155, N.M. May 12, 2014) While on patrol on a lightly traveled road, Officer Devos saw a car with a cracked windshield traveling in the opposite direction. Devos conducted a traffic stop and encountered Maner, the driver, and Garcia, the passenger. Devos arrested Maner for driving with a suspended driver's license and decided to have the car towed because it could not be driven safely with its cracked windshield. Before towing the car, department policy required Devos to inventory the contents of the car, which Devos had to do by himself because no other officers were available to assist him. Before conducting the inventory, Devos asked Garcia, who appeared to be nervous, to get out of the car. Devos recognized Garcia from a recent encounter. Two weeks earlier, Devos had deployed his Taser against Garcia after Garcia actively resisted arrest. In addition, Devos knew Garcia had a prior criminal history for armed robbery. Based on these facts, Devos decided to frisk Garcia for weapons before he turned his back on Garcia to conduct the inventory search. During the frisk, Devos found a gun magazine containing seven .380 caliber cartridges. The government indicted Garcia for being a felon in possession of ammunition. Garcia argued Devos did not have reasonable suspicion that Garcia was armed and dangerous; therefore, the frisk was unlawful, and the ammunition should have been suppressed. The court disagreed. First, Devos' previous encounter with Garcia and Devos' knowledge that Garcia had a criminal history that included armed robbery supported a reasonable suspicion Garcia was presently armed and dangerous. Second, Devos had a reasonable concern for his safety because the stop occurred on an isolated road, at night, and Devos needed to turn his back to Garcia to conduct the inventory search. Based on the totality of the circumstances, the court concluded Officer Devos had reasonable suspicion under the Fourth Amendment to frisk Garcia.
Hall v. Florida, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 12-10882, filed 05/27/14). As interpreted by the Florida Supreme Court, Florida's rule requiring a threshold showing that a defendant have an IQ score of 70 or below before being permitted to present any additional intellectual disability evidence so as to be deemed ineligible for the death penalty, is unconstitutional.
State v. Santos-Vega, ___ Kan. ___, ___ P.3d ___ (No. 104485, filed 03/21/14). Santos-Vega fondled 15 and 11 year olds who occasionally stayed at his girlfriend's house. A detective that volunteered an invocation in violation of Doyle, along with the who to you believe nature of the aggravated indecent liberties charge, denied defendant a fair trial. This was a credibility contest, and the impact of the Doyle violation, complete with the detective's histrionic emphasis, and the lack of unanimity between the evidence and the charges being deliberated, which remained unexplained despite the jury's obvious confusion, meant the state failed to establish, beyond a reasonable doubt that the combined effect of these errors did not affect the jury's verdicts.
State v. Franco, ___ Kan.App.2d ___, ___ P.3d ____ (No. 107814, filed 02/14/14). Based on Lawrence v. Texas, 539 U.S. 558, 578-79, 123 S. Ct. 2472, 156 L. Ed. 2d 508 (2003), K.S.A. 21-3505 and its recodification in K.S.A. 2013 Supp. 21-5504(a) is unconstitutional and unenforceable with respect to anal intercourse between consenting adults of the same sex conducted in private. Lawrence also precludes criminalizing oral-genital contact between consenting adults of the same sex. 539 U.S. at 578-59. So K.S.A. 2013 Supp. 21-5504(a) would be unconstitutional if it were enforced that way, as well.
Bhogaita v. Altamonte Heights Condominium Ass'n, ___ F.3d ___ (11th Cir. No. 13-12625, 13-13914, filed 08/27/14). Appellee Ajit Bhogaita persuaded a jury that Appellant Altamonte Heights Condominium Association, Inc., ("the Association") violated the disability provisions of the Federal and Florida Fair Housing Acts, 42 U.S.C. § 3604(f)(3)(b) (“FHA”) and Fla. Stat. § 760.23(9)(b), respectively, when it enforced its pet weight policy and demanded Bhogaita remove his emotional support dog from his condominium. His Dr. described the dog as an "emotional support animal," to assist with Bhogaita's mental illness. The jury awarded Bhogaita $5,000 in damages, and the district court awarded Bhogaita more than $100,000 in attorneys' fees. The Association appealed both the judgment entered on the jury's verdict and the award of attorneys' fees. The 11th Circuit affirmed.
Kite's Bar & Grill, Inc. v. Kansas Dept. of Revenue, ___ Kan.App.2d ___, ___ P.3d ____ (No. 110315 filed 06/27/14). KDOR suspended Kite's liquor license for 4-weekend days due to a minor obtaining or possessing alcohol on Kite's premises. A Riley County officer had located a 19-year old drinking in the bar and notified Kite's manager, but did not issue a citation. KDOR later mailed a citation and suspended the license. Kite's appealed, alleging strict liability was inappropriate and substantial compliance with the notice statute by ABC was insufficient. The Court of Appeals agreed with the notice argument and reversed the suspension. K.S.A. 41-106 is plain and unambiguous in requiring that a civil citation for a violation of the Kansas Liquor Control Act be delivered to the person committing the violation at the time of the violation and then a copy of the citation be mailed to the licensee within 30 days of the violation. Because ABC did not do so here, the citation it later mailed to Kite's was unenforceable and void.
State v. Nunez, ___ Kan. ___, ___ P.3d ___ (No. 102377, filed 01/24/14). Nunez forced himself on his ex-wife, then appealed claiming that rape is an alternative means crime and the state did not present any evidence of fear, so his conviction must be reversed. The Court disagreed. The phrase "force or fear" in Kansas' rape statute, K.S.A. 21-3502(a)(1)(A), merely describes a factual circumstance that may prove a distinct, material element of rape—namely, having nonconsensual sexual intercourse with a victim who is "overcome." In other words, the actus reus of subsection (a)(1)(A) is "to overcome," and the phrase force or fear merely describes this material element. Accordingly, the phrase force or fear does not create alternative means of committing rape and, consequently, a defendant's conviction for rape under K.S.A. 21-3502(a)(1)(A) will be affirmed on appeal when the jury was instructed that it must find that the victim was overcome by force or fear and evidence of either force or fear was presented at trial. Language contained in State v. Timley, 255 Kan. 286, 875 P.2d 242 (1994), and State v. Wright, 290 Kan. 194, 224 P.3d 1159 (2010), suggesting otherwise is specifically disapproved. See also State v. Brooks, ___ Kan. ___, ___ P.3d ___ (No. 102452, filed 01/24/14). Brooks blackmailed his ex-wife into having sex with him. The Court agreed with the Court of Appeals that the rape statute sets out one way to commit rape, but disagreed with the Court of Appeals that there was no evidence of fear. Fear, as used in the statute, is an inherently subjective concept because what frightens one person may not frighten another at all. Therefore, whether a victim is overcome by fear for purposes of K.S.A. 2005 Supp. 21-3502(a)(1)(A) is generally a question to be resolved by the finder of fact.
Case name unknown, profiled on Lawofficer.com on 09/02/14. An LA County superior court judge sided with the Los Angeles Police Department and the Los Angeles County Sheriff’s Department in ruling that License Plate Reader (LPR) data is not subject to disclosure. The release of the data had been sought by the American Civil Liberties Union (ACLU) and the Electronic Frontier Foundation (EFF). A key part of the ruling was that the records were exempt under the California Government Code that allows records of an investigative nature to be withheld. The judge stated:
It [LPR data] also would reveal patrol patterns which would compromise ongoing investigations, and even fixed point data could undermine investigations. Disclosure could also be used by a criminal to find and harm a third party.
There also is a public interest in maintaining the privacy of vehicle drivers and owners. Disclosure of ALPR data would release records detailing the precise locations of vehicles bearing particular license plate numbers on specified dates and times. The privacy implications of disclosure for individual drivers and car owners are substantial. Members of the public would be justifiably concerned about LAPD or LASD releasing information regarding the specific locations of their vehicles on specific dates and times to anyone.
Judge Chalfant noted that if the court determined the data was not exempt, the determination would require the release of LPR data to other members of the public whose requests may be focused on a particular vehicle or location. “Disclosure to one member of the public constitutes a waiver of the exemption, and any person who requests a copy would be entitled to it. Respondents would be powerless to refuse subsequent requests based on concerns about who is seeking the data and why,” Chalfant said, citing County of Santa Clara v. Superior Court, (2009) 170 Cal.App.4h 1301, 1321-22.
Molner v. Prairie Village (not an actual case - just an article in the Prairie Village Post on 4/16/14 that has turned Molner into the posterboy on the evils of ALPR data). A false reading by a license-plate scanner mounted on a Prairie Village police car led officers to stop an innocent motorist on 75th Street Monday — an incident that has the PV-based attorney questioning the department’s protocol for officers unholstering their weapons. A PV officer stopped Mark Molner after a hot list stolen car alert. As it turned out, though, the license scanner mounted on the car had misread a "7" on Molner’s license plate as a "2." The alert the officer received was related to a stolen Oldsmobile. Molner was driving a black BMW. The cars had been traveling opposite directions and the officer had to do a U-turn and catch up to Molner. "Due to rush hour traffic, [the officer] was unable to compare the two tags prior to activating a traffic stop. What he did know is that the tag from the [license plate reader] came back to an Oldsmobile, however, that doesn’t mean the tag isn’t stolen. The BMW could be stolen or it could have simply been a switched tag,” per Capt. Wes Lovett.
Rosemond v. United States, 568 U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 12-895, filed 03/05/14). In order to convict a defendant of aiding and abetting the use of a firearm in relation to a crime of violence or a drug-trafficking crime, the government does not need to prove that the defendant intentionally facilitated or encouraged the use of the firearm. It is enough that the defendant knows that one of his confederates will carry a gun.The trial court’s jury instructions were erroneous because they failed to require that Rosemond knew in advance that one of his cohorts would be armed. In telling the jury to consider merely whether Rosemond “knew his cohort used a firearm,” the court did not direct the jury to determine when Rosemond obtained the requisite knowledge—i.e., to decide whether Rosemond knew about the gun in sufficient time to withdraw from the crime. The case is remanded to permit the Tenth Circuit to address whether this objection was properly preserved and whether any error was harmless.
Burrage v. United States, 568 U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 12-7515, filed 01/27/14). Where use of the drug distributed by the defendant is not an independently sufficient cause of the victim’s death or serious bodily injury, a defendant cannot be liable for penalty enhancement under 21 U.S.C. §841(b)(1)(C) unless such use is a but-for cause of the death or injury.
Whitfield v. United States, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 13-9026, filed 01/20/15). In this case, petitioner fled police after a botched bank robbery, entered the home of a 79-year-old lady through an unlocked door, guided the lady through the hallway to a room, where she suffered a fatal heart attack. Petitioner was convicted of violating 18 U.S.C. section 2113(e), which establishes enhanced penalties for anyone who "forces a person to accompany him" in the court of committing or fleeing from a bank robbery. Judgment of the Fourth Circuit finding that petitioner's movement with the deceased qualified as forced accompaniment is affirmed, where a bank robber forces a person to accompany him, for purposes of section 2113(e), when he forces that person to go somewhere with him, even if the movement occurs entirely within a single building or over a short distance.
State v. Howard, ___ Kan.App.2d ___, ___ P.3d ____ (No. 110439, filed 12/05/14), rev. granted ___ Kan. ___ (02/18/16). Officer's stopped Howard's vehicle for a traffic violation and arrested him on warrants. Searching the car after seeing drug paraphernalia in plain view, officers found an AK-47 and the State later charged Howard with criminal possession of a firearm, believing he was prohibited from possessing a firearm because he had pled guilty to first-degree burglary in Missouri in 2006. Howard argued he was not prohibited from possessing a firearm because he received and completed probation for a suspended imposition of sentence (SIS) in Missouri (which is not considered a conviction there), that the police discovered the gun during an unlawful search of his vehicle, and that the district court erred in excluding evidence that he lawfully purchased the AK-47 in Missouri after reporting his criminal background for a federal background check. The Court held Howard was prohibited from possessing a firearm in Kansas because the Missouri court found him guilty of first-degree burglary and in Kansas a person is "convicted" when a sentencing court makes an adjudication of guilt. See K.S.A. 2013 Supp. 21-5111(d). Second, the State lawfully searched Howard's vehicle. The police are not required to obtain a warrant to conduct a search if there are exigent circumstances and probable cause to search. Here the mobility of Howard's vehicle created exigent circumstances, and the torn plastic baggie and the officer's training and experience regarding such baggies created probable cause to search. Third, the district court did not err in excluding evidence that Howard lawfully purchased the AK-47 in Missouri. The evidence was irrelevant because criminal possession of a firearm is a general-intent crime and the State had to prove only that Howard possessed the firearm, not that he knew he was considered a convicted felon in Kansas.
State v. Haskell, ___ Kan.App.2d ___, ___ P.3d ____ (No. 111344, filed 10/31/14). Sherry L. Haskell's daughter threw a house party where a number of minors consumed alcohol. Haskell attended the party, serving as the disc jockey, dancing, and drinking with the minors. The State charged her with unlawfully hosting minors consuming alcohol under K.S.A. 2013 Supp. 21-5608. The crime of unlawfully hosting minors is described by statute as recklessly permitting a person's residence to be used by an invitee or an invitee of the person's child in a manner that results in the unlawful possession or consumption of alcoholic liquor or cereal malt beverage by a minor. K.S.A. 2013 Supp. 21-5608(a). Haskell moved to dismiss, arguing that the legislature's use of the word invitee—a word that, in the field of tort law, refers to a business visitor—rendered the statute inapplicable. The district court agreed and dismissed the charge. The Court of Appeals reversed, finding that the common meaning of the word invitee is "one who is invited."
State v. Wilkins, ___ Kan.App.2d ___, ___ P.3d ____ (No. 109313, filed 10/31/14). Breonna Wilkins was a girlfriend to one of the Knollwood Nine who killed Natalie Gibson during a burglary. She contacted one of the nine and urged them to keep their mouth shut and not take a plea. She was convicted of aggravated intimidation of a witness in violation of K.S.A. 2011 Supp. 21-5909. She claims that the phrase "thwart or interfere in any manner with the orderly administration of justice" in K.S.A. 2011 Supp. 21-5909 is unconstitutionally vague. The Court of Appeals disagreed. "Thwart" is defined to mean "to run counter to so as to effectively oppose or baffle; contravene; to oppose successfully; defeat the hopes or aspirations of." Webster's Ninth New Collegiate Dictionary 1232 (1984). The word "interfere" is defined as "to interpose in a way that hinders or impedes." Webster's Ninth New Collegiate Dictionary 631 (1984).
Therefore, if the purpose of advice given to a witness is to hinder the State's one complete opportunity to investigation or prosecute a claim, it is intimidation of a witness. If the advice is given in good faith based on what is perceived to be the best interests of the witness, it is not intimidation of a witness. The simple, ordinary definitions of the words in the statute are clear enough and not so vague as to leave ordinary people guessing as to whether they have subjected themselves to criminal liability.
Carroll v. Carman, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 14-212, per curiam, filed 11/10/14). Officers went to a residence on a corner lot looking for a car thief. Not finding any parking in front of the home, they parked near the back and knocked on a sliding glass door that opened onto a ground-level deck. They did not find the car thief in the residence, but the homeowner sued claiming the knock and talk was invalid because officers did not start at the front door. The Third Circuit agreed and denied summary judgement for the officer. The Supreme Court reversed. "We do not decide today whether those cases were correctly decided or whether a police officer may conduct a “knock and talk” at any entrance that is open to visitors rather than only the front door. “But whether or not the constitutional rule applied by the court below was correct, it was not ‘beyond debate.’ ” Stanton v. Sims, 571 U. S. ___, ___ (2013) (per curiam) (slip op., at 8) (quoting al-Kidd, 563 U. S., at ___ (slip op., at 9)). The Third Circuit therefore erred when it held that Carroll was not entitled to qualified immunity."
Michaels v. City of McPherson, court and case No. unknown, profiled on KWCH on 10/17/14. A federal jury has awarded nearly $1 million in wages and damages to a former McPherson police officer who was fired after being found asleep on duty. Jurors found the city of McPherson discriminated against Matthew B. Michaels on account of a disability of sleep apnea. A court judgment filed Wednesday orders the city to pay $921,657 — plus interest, court costs and attorney's fees. That amount includes back and future wages as well as damages for pain and suffering. Attorney Ray Simmons said in an email Thursday that Michaels is pleased to get a "name-clearing hearing" in federal court where a jury rendered a verdict in his favor. McPherson City Attorney Jeff Houston said the city planned to ask the judge to overturn the verdict and, failing that, planned to appeal.
Wilson v. Village of Los Lunas, ___ F.3d ___ (10th Cir. No. 13-2203, filed 07/22/14, unpublished). Officers stopped Wilson for traffic violations. Depending on who you believe, either Wilson was a jerk or the officers were jerks, but Wilson was ordered out of the car and did not comply, so he was physically subdued and arrested. Wilson claimed officers violated his Fourth, Fourteenth and First Amendment rights. The district court granted the officers summary judgment based on qualified immunity. The Tenth Circuit affirmed. Wilson's traffic stop was not completed because there is no evidence that he ever signed the citations. To the contrary, he began to argue with the officers when they tried to issue the citations. At that point they ordered him from the car which ultimately led to his arrest for battery on a peace officer and resisting arrest under New Mexico statute. Although New Mexico has a "catch and release" statute NMSA § 66-8-123, it doesn't apply where the offender hasn't signed the citation before engaging in other criminal acts. Finally, although Wilson had complained to officers about a prior run-in with the police, the law was not clearly established regarding retaliatory arrest.
Al-Turki v. Robinson, ___ F.3d ___ (10th Cir. No. 13-1107, filed August 12, 2014), the Tenth Circuit affirmed denial of qualified immunity for a prison nurse on a prisoner's § 1983 claim for refusing to treat him. At approximately 8:30 p.m., prisoner Homaidan Al-Turki began experiencing severe pain in his abdomen that caused him to collapse, vomit, and fear he was dying. Al-Turki used his cell intercom to request medical treatment. The responding officer called the prison nurse on duty, Mary Robinson, who told him she would not treat Al-Turki because it was too late and his complaint was not an emergency. Al-Turki complained on two other occasions during the night and was informed by Robinson that he could make a written request to see medical staff in the morning. Al-Turki lost consciousness or fell asleep at approximately 11:30 p.m., and by 6:00 a.m. was experiencing no pain. During a medical visit in the morning, Al-Turki passed two kidney stones. He subsequently filed suit against Robinson under 42 U.S.C. § 1983 for refusing to treat him. On Robinson's motion for summary judgment, the district court held that it was clearly established Tenth Circuit law that a medical professional who knows of and appreciates an inmate's serious risk of medical harm must make a good faith effort to assess him to avoid a finding of deliberate indifference. The district court therefore declined to grant Robinson summary judgment on qualified immunity grounds, and she filed an interlocutory appeal to the Tenth Circuit. On review, the Tenth Circuit dismissed Robinson's argument that pain associated with kidney stones was too benign to trigger liability. The court explained that although the parties all now know that Al-Turki was suffering from kidney stones, the situation that presented itself to Robinson could easily have been life-threatening, and her choice to ignore multiple requests for medical help from an inmate experiencing severe abdominal pain was deliberately indifferent under its holding in Self v. Crum, 439 F.3d 1227, 1232 (10th Cir. 2006). The Tenth Circuit affirmed the district court's denial of summary judgment on qualified immunity grounds.
State v. Kendall, ___ Kan. ___, ___ P.3d ___ (No. 106960, filed 08/08/14). Kendall kept calling his ex-wife from the El Dorado correctional facility. Although he never spoke to her, call records showed that he called her. The Court of Appeals reversed Kendall's conviction for stalking concluding there was insufficient evidence showing that Kendall had committed an "act of communication" as proscribed by the stalking statute. The Supreme Court reversed the Court of Appeals, holding that K.S.A. 2010 Supp. 21-3438, requires the State to show that the perpetrator sent or transmitted a communication to the victim and the victim received the communication. It held Kendall violated the stalking statute by calling the victim's cell phone in violation of a protective order and, in turn, the victim seeing on her phone's caller ID that the defendant was calling her cell phone.
Buchanan v. City of Topeka, ___ F.Supp. ___ (U.S.D.C. Kan. No. ____, filed 7/30/14). Buchanan alleged Topeka police and prosecutors engaged in an elaborate conspiracy that violated his constitutional rights to due process and a fair trial. Melgren dismissed it, finding that Heck v. Humphrey required Buchanan to prove his conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal or called into question by a federal court’s issuance of a writ of habeas corpus, but Buchanan could not make that showing. Buchanan acted as his own attorney in filing the suit Nov. 27 against the city of Topeka, Shawnee County and the state of Kansas. Buchanan then filed an amended complaint Dec. 2 listing the city, the county and various city, county and state officials as defendants. The state was no longer listed as a defendant in the amended complaint. Buchanan contended the defendants violated his Fifth and 14th Amendment rights; participated in a civil conspiracy and/or collusion to fraudulently deprive him of his liberty and property; and committed intentional infliction of emotional distress. The claims were linked to a case in which a jury in Topeka found Buchanan guilty on Dec. 2, 2011, of driving under the influence by someone who has at least two DUI convictions. He was sentenced to 120 days in jail and a $2,500 fine. Buchanan alleged Topeka police neglected to perform required quality control checks in its breath-testing machine; the Kansas Department of Health and Environment oversaw its breath-testing program in a neglectful manner; and a KDHE official directed a Topeka police supervisor to alter, remove and conceal public records that were turned in to the KDHE Breath Alcohol Program and used in court. Buchanan also represented himself in filing a U.S. District Court lawsuit Nov. 27 against Douglas Wells, the Topeka attorney who represented him in the DUI case. Melgren dismissed that suit July 9.
Engle v. City of Mission, Court and Case Number Unknown, profiled in Prairie Village Post 7/30/14. The multi-million dollar lawsuit against the City of Mission over a March 2013 incident at the Mission post office on Broadmoor has been ended, but the terms of the agreement that led to its dismissal are being kept secret. Catrina Engle had sued the city, then police chief John Simmons and officers Timothy Gift and Michelle Pierce, asking for $1.75 million in compensatory damages and $1.75 in punitive damages. The suit was dismissed voluntarily in late June by both sides with each party paying its own attorney’s fees. The city was represented by attorneys for its insurance company. An open records request by PVPost.com for the terms of any agreement or any payments issued by the city were all met with the response that the information was “confidential and privileged per the insurance company’s lawyer, Peter Maharry. Fisher Patterson Sayler & Smith.” Maharry did not return a call Wednesday morning. The only substantive answer provided to the request said that the “City’s deductible was $5,000.” That was in response to a question asking for records that would indicate payments by the city or its insurance company to Engle under any agreement. The Mission City Council held an executive session in June near the time of the dismissal, citing litigation as the justification for the closed meeting. A confidentiality agreement is reportedly in place over terms of any settlement. The insurance company’s attorneys represented the city in the federal suit. During the post office incident, officers handcuffed Engle and took her to the ground. She was charged with interfering with a police officer and disorderly conduct and found guilty by Mission City Judge Keith Drill in August 2013. She appealed the conviction and was found innocent on both charges in Johnson County District Court in November 2013. Mission City Attorney David Martin prosecuted that case for the city. In her federal lawsuit, filed before the district court trial, she alleged that police threw her to the ground, searched her purse, performed a cavity search and took her driver’s license without consent. Her children were nearby when she was taken into custody. She claimed a violation of her Constitutional rights and emotional harm to the children. Simmons left the department the next month after the federal suit was filed. Pierce, the officer who initially interacted with Engle at the scene, also has left the department.
Stormont-Vail Hospital v. Imler, ___ Kan.App.2d ___, ___ P.3d ____ (No. 110553, filed 07/25/14). Imler got in a bar fight and required medical clearance prior to being jailed. A Topeka Police Officer took him to the emergency room. Imler received medical attention costing $3,825.20, but he failed to pay it contending the Topeka Police Department should pay it. Stormont-Vail sued Imler. The district judge entered judgment for plaintiff for $2000 and allowed Imler to make payments. The Court of Appeals reversed, finding no evidentiary basis to reduce the judgment amount, nor any authority to establish a payment plan.
State v. Parker, Montgomery County District Court Case No. Unknown, reported in Topeka Capital Journal 07/15/14). A former Independence police chief pled Tuesday (07/15/14) in Montgomery County District Court to four felonies tied to his stint as chief. Former Independence Police Chief Kenneth Parker pled to perjury, official misconduct, misuse of public funds, and theft of property valued at more than $25,000. Judge Gary House sentenced Parker to concurrent terms of six months for the perjury charge, 12 months for the official misconduct charge, 12 months for the misuse of public funds charge, and 12 months for the theft charge, then placed Parker on two years of probation. Parker also paid $50,000 in restitution to the Independence Police Department. According to court records, Parker stole ammunition, bottled water, camping equipment, cots, firearms, food, generators, cash and other property from the city of Independence.
Leatherwood v. Welker, 2014 U.S. App. LEXIS 12813 (10th Cir. No. 13-6152, Okla. July 8, 2014). Leatherwood was on probation for sex crimes. His ex-wife called his probation officer, Welker, and told Welker she had personal knowledge that Leatherwood had raped Woods, who was Leatherwood's current girlfriend. Leatherwood's ex-wife also told Welker that Leatherwood might have firearms inside his house and in his truck. The conditions of Leatherwood's probation prohibited him from possessing firearms and committing crimes. A CI also reported that Leatherwood had sent e-mails of a sexual nature to Woods and that Leatherwood had sexual materials in his home. Welker conducted a warrantless search of Leatherwood's home. Leatherwood subsequently sued Welker and the other law enforcement officers, claiming the warrantless search of his house violated the Fourth Amendment. The court held Welker and the other law enforcement officers did not violate the Fourth Amendment because they had reasonable suspicion Leatherwood violated the conditions of his probation. Individuals on probation have a diminished expectation of privacy, and Oklahoma Department of Corrections policy allows warrantless probation searches when there is reasonable suspicion of a probation violation or crime. Here, the court held the tips received by Welker were sufficiently reliable to establish reasonable suspicion. First, Welker knew the identity of Leatherwood's ex-wife and spoke directly with her on the phone. Second, the ex-wife claimed personal knowledge that Leatherwood committed rape, the offense for which he was serving supervised release, and provided the name of Leatherwood's current girlfriend who was the alleged victim. Third, while the content of the allegations in the e-mails came from an anonymous source, Welker knew the assistant district attorney who forwarded the e-mails to her. Finally, the anonymous source claimed he had access to Leatherwood's house, thereby providing a reliable basis of knowledge for the information contained in the e-mails.
Stonecipher v. Valles, 2014 U.S. App. LEXIS 12384 (10th Cir. No. 13-2124, N.M. July 1, 2014). Federal agents working in an undercover capacity purchased a firearm and two explosives from Stonecipher. The agents also confirmed Stonecipher bought and sold firearms, gun parts, and ammunition online without having a federal firearms license. Stonecipher's criminal history showed two "suspended imposition of sentence dispositions" for Missouri domestic violence charges. An AUSA advised the agents that Stonecipher was prohibited from possessing firearms under 18 U.S.C. § 922(g)(9). The agents obtained and served a warrant on Stonecipher's residence. Stonecipher filed a Bivens action against the federal agents claiming a variety of constitutional violations regarding the search of his house and arrest. The district court held the agents were entitled to qualified immunity because they reasonably concluded on the facts available to them that they had probable cause to search Stonecipher's house, arrest and then file charges against him. The court of appeals held the agents did not act in reckless disregard for the truth. The court concluded it was reasonable for a non-legally trained officer to assume a conviction and sentence were two separate things, and that the type of sentence would not invalidate a conviction.
State v. Suady, ___ Kan. ___, ___ P.3d ___ (No. 105603 filed 06/27/14). Suady robbed Kenneth Price and took his vehicle. The Court of Appeals reversed the conviction, holding that robbery was a specific intent crime. The Supreme Court disagreed, and held that the plain language of the robbery statutes creates no requirement of specific intent and requires only a "taking" of property, without distinguishing between "incidental" and intentional taking.
State v. Edwards, ___ Kan. ___, ___ P.3d ___ (No. 106299 filed 06/27/14). According to the plain language of K.S.A. 21-3426, robbery and aggravated robbery are general intent, not specific intent crimes. In order to prove the elements of the crimes, the State need only prove that a defendant took property from the person or presence of another by force or by threat of bodily harm to any person. To the extent that State v. Montgomery, 26 Kan. App. 2d 346, 988 P.2d 258 (1999), is inconsistent with this legislative mandate, it is disapproved.
Felders v. Malcom, 2014 U.S. App. LEXIS 11627 (10th Cir. No. 12-4154, Utah June 20, 2014). Trooper Bairett stopped Felders for speeding. During the stop, Bairett noticed Felders was nervous, and would not maintain eye contact with him. Bairett also smelled the strong odor of air freshener coming from the car and saw a license plate ring with "Jesus" written on it. Based on these observations, Bairett suspected Felders was transporting drugs in her car. After issuing Felders a speeding ticket, Bairett asked to speak to the two passengers in the car. Based on several perceived inconsistencies between the passengers' stories and Felders' story about the details of their trip, Bairett believed he had reasonable suspicion Felders was transporting drugs. After Felders refused to consent to a search of her car, Bairett called for a K-9 unit to bring a drug-sniffing dog. When Deputy Malcolm arrived with his K-9, Duke, Bairett told him about the encounter with Felders and that Bairett believed there was probable cause to search Felders' car for drugs. Bairett then ordered the passengers get out of the car, but he did not let them close the car doors. Bairett's dash camera recorded Malcolm commenting to Bairett, "Nice of them to leave the door open for you," to which Bairett responded, "Yeah it was, wasn't it?" When Malcolm began the dog sniff, Duke jumped into Felders' car through the open rear passenger door and alerted on the center console. Malcolm opened the console and found two bags of jerky. After removing the jerky, the officers searched Felders' car for approximately two-hours, but found no drugs. Felders sued, claiming Bairett and Malcolm violated the Fourth Amendment by illegally searching her car. While the district court held neither officer was entitled to qualified immunity, only Deputy Malcolm appealed. Malcolm argued probable cause existed to search Felders' car before the dog sniff. Alternatively, Malcolm argued if he did not have probable cause to search Felder's car, the law did not clearly establish that his actions during the dog sniff violated the Fourth Amendment. The Tenth Circuit Court of Appeals disagreed and affirmed the district court holding that Malcolm was not entitled to qualified immunity. First, the court held Malcolm did not have probable cause to search Felders' car for drugs prior to conducting the dog sniff. The court ruled Malcolm could not reasonably rely on Bairett's conclusion that probable cause existed to search Felders' car, nor would a reasonable officer in Malcolm's position believe he had probable cause to search for drugs. The court found, at best, Bairett and Malcolm had reasonable suspicion to conduct a Terry stop. Second, the court held Malcolm did not independently establish probable cause to search Felders' car. Malcolm's argument that inconsistencies in Felders' statements to Bairett were lies, which constituted obstruction of justice under Utah law, was not reasonable. Third, the court held at the time of the incident, it was clearly established that facilitation of a dog's entry into a car without probable cause violated the Fourth Amendment. The court found a reasonable jury could conclude Bairett intentionally caused the car doors to remain open to facilitate Duke's entry and that Duke failed to properly alert before entering Felders' car.
Abramski v. United States, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 12-1493, filed 06/16/14). 18 U. S. C. §922(a)(6) imposes criminal penalties on any person who, in connection with a firearm’s acquisition, makes false statements about “any fact material to the lawfulness of the sale.” Abramski, a former police officer, certified he was an actual purchaser of a Glock 19 handgun for his uncle, Angel Alvarez. Abramski thought he could get the gun for a discount by showing his old police identification. The Court held that such a misrepresentation is punishable under the statute, whether or not the true buyer could have purchased the gun without the straw purchaser.
Bond v. United States, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 12-158, filed 06/02/14). Defendant's crime of simple assault, carried out by spreading two toxic chemicals on the victim's car, mailbox, and door knob in hopes that the victim would develop an uncomfortable rash, does not come within the scope of the Chemical Weapons Convention Implementation Act of 1998, which makes it a federal crime for a person to use or possess any chemical weapon. The Third Circuit Court of Appeal's conclusion otherwise is therefore reversed and remanded
Wood v. Moss, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 13-115, filed 05/27/14). Anti-Bush protesters argued their First Amendment rights were violated when the Secret Service moved them farther down the street than supporters of then-President George W. Bush, while he dined on an outdoor patio in Jacksonville, Oregon. The court asserted the agents did not engage in viewpoint-based discrimination and are immune from this type of suit, stating that "safeguarding the President is also of overwhelming importance in our constitutional system."
Commonwealth of Vt. v. Berube, Court and Case No. Unknown, profiled on PoliceOne.com on 6/2/14. From the truth is stranger than fiction file, a woman who approached an officer from behind and used a knife to cut his throat has been acquitted by a jury of an attempted murder charge. Jennifer Berube was acquitted Friday less than two hours after jurors began deliberations. Rutland City Police arrested Berube, along with her husband, John MacLean III, in December 2012 for possessing a stolen credit card. Surveillance footage from the police station’s booking area following the arrest captured Berube sneaking up on Officer Damon Nguyen from behind with a 2-inch blade in her hand. She put her hands around Officer Nguyen’s neck and struggled with him until she was subdued by multiple other officers, according to the report. Officer Nguyen suffered a cut near his jugular vein as a result of the attack. The blade used by Berube was in an inside jacket pocket and was missed when police patted her down. Berube claims she held the knife in an escape attempt, and wanted to scare the officer, not harm him. The jury delivered "not guilty" verdicts for attempted second-degree murder and the lesser charge of attempted aggravated assault with serious bodily injury.
Plumhoff v. Rickard, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 12-1117, filed 05/27/14). The Sixth Circuit denied qualified immunity for force used in 2004 to end a vehicular pursuit that is similar to the force ruled permissible in Scott v. Harris, 550 U.S. 372 (2007). The Sixth Circuit denied qualified immunity by distinguishing Scott "in the details" from the force used three years earlier in this case. For qualified immunity purposes, did the Sixth Circuit err in analyzing whether the force was supported by subsequent case decisions as opposed to prohibited by clearly established law at the time the force was used? On July 18, 2004, West Memphis (Ark.) police stopped a white Honda Accord with only one operating headlight and an “indentation” in the windshield. Officer Joseph Forthman questioned the driver, Donald Rickard, and then asked him to step out of the car. Instead, Rickard — with passenger Kelly Allen in the passenger seat — drove off. A police pursuit began — parts of which three police dash cameras recorded. Officer Vance Plumhoff became the lead vehicle in the chase. Rickard entered the I-40 freeway, crossing from Arkansas into Memphis (Tenn.). During the chase, Rickard sped, veered, and tried to ram Officer Plumhoff’s vehicle and other cars. After exiting the freeway, Rickard hit one of the police cars, spun, and then (according to the police account) turned directly toward Officer Plumhoff’s car and collided head-on. The officers attempted to box in the car with their police vehicles. Rickard reversed and hit another police car and nearly struck an officer. By this time some of the officers were out of their cars with their guns out and were ordering Rickard out of his car. Rickard did not comply and continued to try to drive away. Three of the officers — including Officer Plumhoff — fired at the fleeing car. Rickard then lost control and crashed his car, killing both him and his passenger. The United States Supreme Court unanimously reversed, holding that the circumstances did not present a knowing deprivation by police officers of the decedent's established Fourth Amendment rights.
Stormont-Vail v. Bd. of Commr's of Riley County, Kansas, (Riley County District Court, profiled on KAKE tv 05/14/14). Commissioners in Riley County have agreed to pay an outstanding hospital bill for a driver who was badly injured while fleeing from police. The Manhattan Mercury reports the commission decided to pay $6,300 sought in a lawsuit by Stormont-Vail Healthcare in Topeka, rather than risk a trial. Marysville resident Jason Fisher suffered severe internal injuries in February 2011 when he rolled a pickup truck while being chased by police. Fisher spent two days at Stormont-Vail, which put the cost of his care at nearly $40,000. Riley County's liability was reduced to the Medicaid rate. County officials had questioned the county's liability because Fisher was not in police custody when he was injured.
Tolan v. Cotton, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 13-551, filed 05/05/14)(per curium). In an action under 42 U.S.C. 1983 for excessive force arising out of defendant-police sergeant's shooting of plaintiff, summary judgment for defendant is vacated and remanded, where: 1) the Fifth Circuit erred in concluding that defendant was entitled to qualified immunity at the summary judgment stage; and 2) in holding that defendant's actions did not violate clearly established law, the Fifth Circuit failed to view the evidence at summary judgment in the light most favorable to plaintiff with respect to the central facts of this case. Cotton tried to stop the vehicle after dumb-thumbing the tag entry and receiving an alert the vehicle was stolen. During the early morning hours of New Year’s Eve, 2008, police sergeant Jeffrey Cotton fired three bullets at Robert Tolan; one of those bullets hit its target and punctured Tolan’s right lung. At the time of the shooting, Tolan was unarmed on his parents’ front porch about 15 to 20 feet away from Cotton. Tolan sued, alleging that Cotton had exercised excessive force in violation of the Fourth Amendment. The District Court granted summary judgment to Cotton, and the Fifth Circuit affirmed, reasoning that regardless of whether Cotton used excessive force, he was entitled to qualified immunity because he did not violate any clearly established right. In articulating the factual context of the case, the Fifth Circuit failed to adhere to the axiom that in ruling on a motion for summary judgment, “[t]he evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor.” For that reason, we vacate its decision and remand the case for further proceedings consistent with this opinion.
Paroline v. United States, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 12-8561, filed 04/23/14). The Supreme Court threw out a nearly $3.4 million judgment against a man convicted of possessing two pornographic images of a child that have been seen by thousands of online viewers. The justices held, in a 5-4 ruling, that courts can order people convicted of child pornography to pay restitution to their victims, but only to the extent that there is a strong tie between the victim's losses and the convicts' actions. Federal judges should exercise discretion in awarding restitution. The case involved a woman known as "Amy." Doyle Randall Paroline was held liable by a federal appeals court for the nearly $3.4 million judgment associated with the ongoing Internet trade and viewing of images of Amy being raped by her uncle when she was 8 and 9 years old.
Walden v. Fiore, 568 U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No 12-574, filed 02/25/14). In a tort action filed in Nevada arising out of allegations against a Georgia police officer who searched plaintiffs at a Georgia airport, seized a large amount of cash, and allegedly drafted a false probable cause affidavit in support of the funds' forfeiture, the Ninth Circuit Court of Appeals erred in concluding that the district could exercise personal jurisdiction over defendant, because defendant lacks the "minimal contacts" with Nevada that are a prerequisite to the exercise of jurisdiction over him. The plaintiffs, two professional gamblers, had their carry-on bags -- which contained over $95,000 -- confiscated by DEA agents. The DEA agents thought the large amount of cash indicated involvement in the drug trade. Plaintiffs, heading home to Las Vegas with a layover in Atlanta after a gambling trip to Puerto Rico, explained that they had won the cash gambling. DEA Officer Walden, wasn't convinced and told the plaintiffs that the money would only be returned if they could prove their story. After returning home to Nevada, the plaintiffs gathered the necessary proof, provided it to the DEA, and eventually received their withheld money several months later. The plaintiffs filed suit in Nevada federal court, alleging Officer Walden had violated their Fourth Amendment rights when he confiscated their winnings. State v. Carnoali, Leavenworth County District Court (profiled in KC Star on 01/28/14). A bail bondsman who was, perhaps, a little too eager to catch his quarry pleaded no contest Wednesday to an aggravated assault charge, the Leavenworth County prosecutor said. Edward Carnoali, 67, was standing in the 1400 block of Grand Avenue, sawed-off shotgun in hand, when a Leavenworth officer approached him the evening of Sept. 25. He’s getting away,” Carnoali reportedly said. “Let’s go.” The officer explained that she was there to investigate a shooting report. I shot at him,” Carnoali is said to have replied. “But don’t worry, I missed him.” Carnoali said that his company was responsible for serving a warrant on a man, whom the bondsman suspected was visiting his girlfriend’s home. When the man ran out the back door, Carnoali allegedly fired at him and began yelling. “The victim was later apprehended and said he was in fear of being shot,” Leavenworth County Attorney Todd G. Thompson said in a written statement. The barrel on Carnoali’s shotgun was 19 inches long, one inch longer than the legal minimum, Thompson said. Sentencing for Carnoali was scheduled for March 12.
Eckert v. Hidalgo County and the City of Deming, unknown court, reported on Findlaw on 1/22/14. David Eckert, who was 63 at the time of his arrest in 2013, was subjected to multiple anal cavity searches for concealed drugs following a routine traffic stop. No contraband was found. Deming police sought a search warrant for Eckert because they thought he appeared to be clenching his buttocks when he got out of his car in January 2013, a drug dog indicated on the driver's seat, and they had information from Hidalgo County deputies that Eckert was known for carrying drugs inside his body. Eckert is now set to receive $1.6 million from Hidalgo County and the city of Deming to settle their portion of the lawsuit. The settlement is only a part of the "anal probe" lawsuit resolution. Major parts of Eckert's lawsuit, against the doctors and hospital, are still ongoing.
City of San Diego v. Cecilia Abadie, San Diego Traffic Court, profiled on Findlaw on 01/17/14. Abadie was cited for speeding and distracted driving for wearing Google Glass behind the wheel. The San Diego traffic court commissioner dismissed the charges finding insufficient proof that Cecilia Abadie was using her Google Glass while driving. Abadie said that she was indeed wearing the glasses, but that they were in sleep mode and therefore not operating when she was pulled over for speeding.
Hoeffner v. Kansas Dept. of Revenue, ___ Kan.App.2d ___, ___ P.3d ____ (No. 110323, filed 09/12/14). Dodge City officers improperly coerced Hoeffner into consenting to a (0.215) breath test when they repeatedly advised him that refusal would result in the seeking and issuance of a search warrant for his blood. Hoeffner was not involved in an accident involving death or serious bodily injury, so the officers' threats to get a warrant were empty threats pursuant to State v. Weilert, 43 Kan. App. 2d 403, 410, 225 P.3d 767 (2010) (applying K.S.A. 8-1001[d][3]), and Cook v. Olathe Medical Center, Inc., 773 F. Supp. 2d 990, 1002 (D. Kan. 2011) (same). However, suppression does not apply to administrative hearings and the test results reflecting that Hoeffner had an alcohol concentration of .08 or greater in his blood were admissible in both administrative and court proceedings relating to the suspension of his driver's license. As such, we find substantial competent evidence supports the district court's decision to uphold the suspension of Hoeffner's license.
Manzano v. Kansas Dept. of Revenue, ___ Kan.App.2d ___, ___ P.3d ____ (No. 108861, filed 05/09/14//14). Police stopped Manzano after he squealed his tires leaving a stop sign. Manzano showed signs of intoxification, but refused a breath test and was suspended. The KDOR granted Manzano a hearing, but the hearing officer only allowed 10 minutes and cut off Manzano's counsel from questioning about events leading up to the stop. The district court held the administrative hearing was "a farce," and reversed the suspension. The Court of Appeals affirmed. Powell, J., dissents. Noting that after being read Miranda warnings and asked if he understood those rights, or whether he would take a breath test, Manzano's response to officers both times was"Fuck you." Additionally, he stipulated to the facts in his criminal diversion. Kansas law mandates that Manzano's driver's license be suspended for 1 year. Because the majority holds otherwise, I dissent.
State v. Gordon, ___ Kan.App.2d ___, ___ P.3d ____ (No. 110470, filed 11/14/14). Gordon pled to an aggravated battery of his live-in girlfriend. The prosecutor then asked for the judge to apply the domestic violence tag to the case. If the offense is determined to be one of domestic violence, the case receives a special domestic violence designation. K.S.A. 2013 Supp. 22-4616(a)(1). Application of this domestic violence designation to a particular case results in a court order that the defendant complete a domestic violence offender assessment and follow its recommendations as part of his or her sentence. K.S.A. 2013 Supp. 21-6604(p). However, the statute provides an exception to this rule if the court finds on the record that the defendant "has not previously committed a domestic violence offense" and the current offense "was not used to coerce, control, punish, intimidate or take revenge against a person with whom the offender is involved." K.S.A. 2013 Supp. 22-4616(a)(2)(A), (B). There is an exception that may prevent a case from receiving a domestic violence designation. If the district court finds on the record that the defendant has never before committed or entered into a diversion for a domestic violence offense and that the offense in question was not used "to coerce, control, punish, intimidate, or take revenge against a person with whom the offender is involved or has been involved in a dating relationship or against a family or household member," the court shall not apply the designation. K.S.A. 2013 Supp. 22-4616(a)(2). Gordon objected to the designation, arguing that the district court was required to make findings on the record that the exception did not apply before applying the designation. The Court of Appeals disagreed. Once an initial determination that an offense is a domestic violence offense, the application of the domestic violence designation is the default and can only be lifted if the district court explicitly finds "on the record" that the two conditions set out in K.S.A. 2013 Supp. 22-4616(a)(2) have been satisfied. Without those findings, the designation stands, and the offender is subject to the domestic violence assessment as set out in K.S.A. 2013 Supp. 21-6604(p).
United States v. v. Castleman, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 12-1371, filed 03/26/14). Defendant's prior conviction for "intentionally or knowingly causing bodily injury to" the mother of his child does qualify as a misdemeanor crime of domestic violence" for purposes of defendant's indictment under 18 U.S.C. section 922(g)(9), which forbids the possession of firearms by anyone convicted of a "misdemeanor crime of domestic violence," and the Sixth Circuit erred in concluding otherwise.
State v. Castleberry, ___ Kan. ___, ___ P.3d ___ (No. 106600, filed 12/24/14), affirming 48 Kan. App. 2d 469, 293 P.3d 757 (2013). Emporia cops arranged a methamphetamine purchase between a CI and Castleberry, and the CI called from the Emporia Police Department to arrange the sale. Once the sale was completed, officers attempted to stop Castleberry, but he fled and led officers on a 45-minute, high-speed chase through residential and rural areas of Lyon County. During the chase, Castleberry disobeyed several stop signs and traffic signals, while driving at speeds ranging from approximately 45 miles per hour to 120 miles per hour. On appeal, Castleberry complains the State failed to establish that venue because the State failed to present sufficient evidence from which a rational jury could infer that Castleberry was physically present in Lyon County during his telephone conversations with the CI. The Supreme Court held it did not matter, since the evidence established the CI called from the Emporia Police Department. As to the court's failure to instruct the jury on"moving violations," to establish felony eluding, the Court held it did not matter, because engaging in reckless driving or committing five or more moving violations are "options within means," rather than alternative means. Accordingly, the State was not required to prove both reckless driving and the commission of five or more moving violations. Therefore, it was not clearly erroneous to fail to instruct upon the definition of a moving violation in this case because ample evidence supported one of the options within a means—reckless driving—upon which the jury was instructed.
City of Wichita v. Molitor, 46 Kan. App. 2d 958, 959, 268 P.3d 498 (2012), reversed, ___ Kan. ___ (No. 104940, filed 01/30/15). Officers saw Molitor come out of a bar about 2300 hours. They stopped him for failing to signal a turn. While stopping, Molitor ran over and parked on a curb. Officers noticed usual indicators of intoxication. Molitor exhibited 6/6 clues on the Horizontal Gaze Nystagmus (HGN) test. He showed 1/4 on the one leg stand (OLS). The preliminary breath test (PBT) was 0.09 and the breath test was 0.091. Molitor argues that it was error for the district court to consider evidence of HGN test in determining whether a police officer had reasonable suspicion to request that he submit to a PBT. The Court of Appeals held it was appropriate for the district court to consider the results of the HGN test administered to Molitor as part of its reasonable suspicion analysis under K.S.A 2010 Supp. 8-1012(b). Because reasonable suspicion is a less demanding standard than probable cause and requires a showing considerably less than a preponderance of the evidence, it found that HGN test results may, under appropriate circumstances, be considered as part of the totality of the circumstances in determining whether a law enforcement officer has reasonable suspicion to request a PBT. It also held that even without the HGN evidence, there was reasonable suspicion for the police officer to believe that Molitor had been operating a vehicle under the influence of alcohol and affirmed. The Supreme Court reversed on both grounds. "[A]t this point in the state of Kansas, the HGN test has no more credibility than a Ouija Board or a Magic 8 Ball. To change that circumstance, the State needs to prove the legitimacy of the test, as Witte directed."
State v. Theurer, ___ Kan.App.2d ___, ___ P.3d ____ (No. 110130, filed 11/21/14). While driving under the influence of alcohol, Miles E. Theurer caused a head-on collision which killed Elizabeth Young and Michael Stanley. In keeping with a plea agreement, Theurer pled no contest to two counts of involuntary manslaughter while driving under the influence of alcohol. Under the Revised Kansas Sentencing Guidelines Act (RKSGA), K.S.A. 2013 Supp. 21-6801 et seq., the district court was required to impose presumptive sentences of imprisonment. Instead, the district court sentenced Theurer to two concurrent 41-month sentences but granted his motion for dispositional departure sentences. As a result, Theurer was not imprisoned but was granted 36 months of probation while under house arrest with special conditions, including serving 60 days in jail. The sentencing court erred in four aspects when it granted Theurer's motion for dispositional departure sentences. First, as a general matter, the sentencing court based its sentencing decision on an error of law by applying an incorrect legal standard. Second, the overriding factor articulated by the sentencing court for granting a departure in this case—that the defendant is an exceptional person with the potential to provide a great benefit to society—is not a substantial and compelling reason to grant departure sentences. Third, some of the sentencing court's other articulated reasons for granting departure sentences were not supported by substantial competent evidence. Fourth, those reasons enunciated by the sentencing court which were supported by substantial competent evidence, when considered together, did not provide a substantial and compelling reason to grant departure sentences given the circumstances of this involuntary manslaughter case. "[T]he Kansas Legislature has repeatedly and consistently focused its attention on punishing intoxicated drivers due to the dangers they pose on Kansas highways."
granting departure sentences were not supported by substantial competent evidence.
State v. Reese, ___ Kan. ___, ___ P.3d ___ (No. 106703, filed 08/29/14), reversing 48 Kan. App. 2d 87, 283 P.3d 233 (2012). Reese was arrested for his fifth DUI on July 3, 2009, but he was not convicted of the offense until June 6, 2011. His sentencing was scheduled for August 10, 2011. All prior DUI convictions occurred before July 1, 2001. Reese alleged he should be sentenced as a first offender. The Supreme Court agreed. It held that K.S.A. 2011 Supp. 8-1567(j)(3) provides that the sentencing court is to take into account only those prior driving under the influence (DUI) convictions that occurred on or after July 1, 2001, and make the determination at the time of sentencing whether the current conviction is a first, second, third, fourth, or subsequent offense for purposes of imposing a sentence enhancement. Accordingly, the provisions of K.S.A. 2011 Supp. 8-1567(j)(3) apply to all persons who are sentenced for DUI on or after the July 1, 2011,effective date of the amended statute.
City of Dodge City v. Webb, 50 Kan. App. 2d 393, 329 P.3d 515, 522 (2014, No. 109634, filed 06/13/14), affirmed (No. 109634, filed 10/21/16). Webb, a two-time DUI offender, argued K.S.A. 2011 Supp. 8-1012(b) was unconstitutional because it allows an officer to request a PBT upon reasonable suspicion—rather than probable cause—that the driver was operating a vehicle while under the influence of alcohol or drugs or both. He further claimed that without the illegal PBT, the officer did not have probable cause to arrest him for DUI. The Court of Appeals rejected these arguments and held that because the officer had probable cause without the PBT results, and because the officer had legal justification for threatening to obtain a search warrant after Webb's initial refusal to take the breathalyzer test, Webb was not improperly coerced into ultimately submitting to the breathalyzer test. A Dodge City officer stopped Webb's vehicle for a tag light violation. The officer noted the odor of an alcoholic beverage, but could not tell if it was coming from the driver (Webb, who denied drinking) or the passengers (who admitted drinking). After getting Webb out of the vehicle, the officer noted a moderate odor coming from him and Webb then admitted to drinking one beer. Webb displayed four out of eight clues of impairment on the walk-and-turn test and three out of four clues of impairment on the one-leg-stand test. A PBT indicated 0.127, and a breath test 0.125. Webb then admitted to six beers, not one. The Court held there was probable cause independent of the PBT, so it need not determine the constitutionality of K.S.A. 8-1012. Further, because the officer was legally entitled to seek a warrant in order to obtain a sample of Webb's blood after he had refused to submit to a breathalyzer test, there was no impermissible coercion. While the statute used to prohibit further testing after a refusal, it no longer does.
State v. DeClerck, ___ Kan.App.2d ___, ___ P.3d ____ (No. 109759, filed 02/07/14, rev. denied 06/20/14.). K.S.A. 2011 Supp. 8-1001(b)(2) is unconstitutional to the extent it requires a search and seizure absent probable cause that the person was operating or attempting to operate a vehicle under the influence of drugs or alcohol. A traffic infraction, plus an injury or fatality, without more, does not constitute probable cause that drugs or alcohol were involved in the accident. A trooper began investigating a fatality accident, and had TPD officer Yancy force a blood draw despite the driver's refusal. The Court of Appeals upheld the district court's decision granting DeClerck's motion to suppress.
K.S.A. 2011 Supp. 8-1001(b)(2) is unconstitutional to the extent it requires a search and seizure absent probable cause the person was operating or attempting to operate a vehicle under the influence of drugs or alcohol. We are acutely aware the statute in question attempts to address the terrible toll impaired drivers inflict on our state's highways, but we are reminded of the "truism that constitutional protections have costs." Coy v. Iowa, 487 U.S. 1012, 1020, 108 S. Ct. 2798, 101 L. Ed. 2d 857 (1988). While the State does have a significant interest in preventing accidents involving drugs and alcohol on the road, K.S.A. 2011 Supp. 8-1001(b)(2) does not further that interest. See Hannoy, 789 N.E.2d at 984 (special needs exception inapplicable where search performed by law enforcement or for law enforcement purposes); McDuff, 763 So. 2d at 855 (statute with public safety and law enforcement purpose does not fall within special needs exception); see also State v. Childs, 275 Kan. 338, 347, 64 P.3d 389 (2003) (exclusive sanction for highly regulated business refusing entry to law enforcement is license revocation). A traffic infraction plus an injury or fatality, without more, does not constitute probable cause that drugs or alcohol were involved in the accident.
State v. Tims, 49 Kan. App. 2d 845, 317 P.3d 115 (2014) (No. 109472, filed 01/03/14), affirmed in part and vacated in part, State v. Tims, ___ Kan. ___, ___ P.3d ___ (No. 109472, filed 08/14/15). Tims, a long-time drinker and driver, had a 2002 DUI diversion in Topeka and a 2004 DUI conviction. He was convicted again in 2012. He alleged his 2002 diversion should not count. The district court agreed and sentenced him as a 2nd offender. The state appealed. The Court of Appeals reversed. State v. Hughes, 290 Kan. 159, 169, 224 P.3d 1149 (2010), and In re Habeas Corpus Application of Gilchrist, 238 Kan. 202, 209, 708 P.2d 977 (1985), do not require judicial certification of a right to counsel waiver contained in a DUI diversion agreement. Formation of the diversion contract does not involve the adjudication of the defendant's guilt or innocence before the municipal court, so Hughes & Gilchrist do not apply nor require a judicial finding.
McDonald v. Wise, ___ F.3d ___ (10th Cir. No. 13-1211, filed 10/28/14). The Tenth Circuit considered whether a name-clearing hearing held by the Colorado Department of Labor satisfied a terminated employee's right to due process. Wayne McDonald, an employee with the City of Denver, was notified by the City that another employee alleged he had sexually harassed her. When McDonald refused to resign, he was terminated. The City later informed news reporters that McDonald had been terminated because of "serious allegations of misconduct." The City objected to McDonald receiving unemployment benefits and, consequently, McDonald participated in a hearing before the Colorado Department of Labor, during which he was provided an opportunity to explain his side of the story. When McDonald was unable to secure other employment, he brought suit against the City under 42 U.S.C. § 1983, alleging, among other things, that the City violated his liberty interest in his good name without providing him a name-clearing hearing. The district court granted the City's motion to dismiss, which McDonald appealed to the Tenth Circuit. The Tenth Circuit considered whether McDonald's hearing in front of the Department of Labor provided him with adequate due process. Ultimately, the court determined that "the depriving governmental entity is generally responsible for the provision of due process." Because the City, not the Department of Labor, was responsible for issuing the stigmatizing statements about McDonald, the court held that McDonald's hearing did not provide him with adequate due process and the district court had erred in dismissing the claim. The court did note, however, that it was conceivable in other circumstances that due process could be satisfied by a hearing held by another entity, noting "the importance of a name-clearing hearing being comparably as public as the stigmatizing statement in order to be effective."
Marquez v. Kansas Department of Corrections, ___ Kan.App.2d ___, ___ P.3d ____ (No. 111327, filed 8/29/14). A permanent state employee cannot be suspended without first being counseled about his work performance deficiencies. Tony Marquez was a parole officer with the Kansas Department of Corrections. In 2010, Marquez acted as parole officer for an inmate who was previously incarcerated for domestic abuse. During his parole, the inmate tested positive for marijuana use and was accused of domestic abuse, among other things. Based on a review of the inmate's parole file, Marquez's supervisors determined that he should be suspended 10 days "for the good of the service." The Kansas Civil Service Board affirmed the suspension, which was approved by the district court. Marquez then appealed to the Kansas Court of Appeals. The primary issue on appeal involved interpreting two sections of the Kansas Civil Service Act, K.S.A. 75-2949e. Section (b) states that prior to suspending a permanent employee for work deficiencies, the employee must have received two performance evaluations in the previous 180 days, unless "the good of the service" requires otherwise. Section (c) provides that if an employer wants to suspend an employee who has not received the necessary performance evaluations, it must show that "the employee was adequately counseled concerning the nature of the deficiencies in work performance and concerning what was expected of the employee in correcting the deficiencies." In suspending Marquez, the Department of Corrections relied on the phrase "good of the service," in section (b), which it claimed allowed it to bypass the performance evaluation requirement. The Court of Appeals disagreed, explaining that section (c) clarifies that if an employer want to impose a suspension without using performance evaluations, it still must show the employee was "adequately counseled." Because the Kansas Civil Service Board made no finding of fact as to whether Marquez had been adequately counseled, the court held that the standards of Kansas Civil Service Act had been erroneously applied, and reversed the decision.
Holmes v. Kansas City Missouri, Court and Case No. unknown, reported in the KC Star on 7/17/14. The Kansas City Council on Thursday agreed to settle the seventh of eight discrimination lawsuits that were related to a 2011 reorganization of the city prosecutor’s office. The latest settlement was for $500,000 with former Assistant City Prosecutor Cynthia Holmes, and brings the total taxpayer outlay to nearly $2 million for the seven lawsuits. One remaining case is set for trial in September. The eight related lawsuits stem from a decision to convert the Kansas City municipal prosecutor’s office from 16 part-time prosecutors to eight full-time prosecutors. City officials say the move helped make the department more professional and efficient as Municipal Court switched to a computerized, paperless system. But eight attorneys who had worked for years as part-time prosecutors filed lawsuits. They had all applied for the new full-time jobs but were not selected. They alleged age, gender and/or race discrimination because several younger, less-experienced lawyers were hired. Holmes was a part-time assistant city prosecutor for more than 20 years. The Law Department recommended settling her lawsuit for $500,000, saying a jury might have found the city to have considered her age as a factor in its hiring decision, based on the age of the women selected, which would be a violation of the Missouri Human Rights Act.
LAPD Recruits v. LAPD, (actual case name and number unknown - Profiled in Police Magazine on 7/11/14). A judge Thursday upheld a jury’s award of more than $2 million apiece to five former Los Angeles police recruits who were denied the temporary city jobs they sought while recovering from injuries suffered during training at the police academy. Los Angeles Superior Court Judge Frederick Shaller denied motions by the City Attorney’s Office to either issue a judgment in the city’s favor despite the verdicts or to grant a new trial. The City Attorney’s Office argued that the verdicts were not supported by the evidence. Shaller disagreed. Shaller also found that the amount of the damages awarded May 5 to former recruits Anthony Lee, Ryan Atkins, Douglas Boss, Justin Desmond and Eriberto Orea was not excessive. Atkins and Desmond were both awarded more than $2.6 million. Boss received $2.5 million, Lee $2.28 million and Orea $2.17 million. The majority portion of most of the money awarded the five was for lost future wages.
Denning v. The Johnson County Sheriff's Civil Service Board, ___ Kan. ___, ___ P.3d ___ (No. 104308, filed 07/11/14), affirming 46 Kan. App. 2d 688, 266 P.3d 557 (2011). Deputy Michael Mauerer was terminated after lying about how a patrol car windshield was broken. Mauerer and another deputy were returning from Topeka when Mauerer tried to kill a fly with a notebook and cracked the windshield. He initially indicated the windshield was cracked by a rock. A first civil service board reversed the sheriff's decision. Denning appealed. The district court reversed the civil service board and remanded for rehearing. The second civil service board affirmed the sheriff's decision. The Court of Appeals affirmed. Mauerer argued that his reports were merely "incomplete—not untruthful." The Court of Appeals disagreed, stating that leaving out critical facts is a violation of the department's truthfulness policy. It held there was substantial competent evidence to support the board's decision. Leben dissents and would have affirmed the first board.
The Supreme Court affirmed. It agreed with Maurer that the CSB had jurisdiction to receive and consider evidence for and against a dismissal in determining the reasonableness of the sheriff's personnel decision, to approve or disapprove of the sheriff's decision, and to make appropriate orders based on its findings and conclusions. It rejected Denning's argument that the CSB either had no authority, or had only limited authority, to review his personnel decision. However, it ultimately held that lying was a adequate reason for termination. : "Half truths are untruths if they infer a conclusion different from what would have been concluded had the whole truth been told." 46 Kan. App. 2d at 701. Johnson, J., dissented, concluding this was a reversal of a decision that the majority does not like, and constitutes substituting the Court's judgement for that of the CSB.
Intergrity Staffing Solutions, Inc. v. Busk, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 13–433 filed 12/09/14). Petitioner Integrity Staffing Solutions, Inc., required its hourly warehouse workers, who retrieved products from warehouse shelves and packaged them for delivery to Amazon.com customers, to undergo a security screening before leaving the warehouse each day. Respondents, former employees, sued the company alleging, as relevant here, that they were entitled to compensation under the Fair Labor Standards Act of 1938 (FLSA) for the roughly 25 minutes each day that they spent waiting to undergo and undergoing those screenings. They also alleged that the company could have reduced that time to a de minimis amount by adding screeners or staggering shift terminations and that the screenings were conducted to prevent employee theft and, thus, for the sole benefit of the employers and their customers. The District Court dismissed the complaint for failure to state a claim, holding that the screenings were not integral and indispensable to the employees’ principal activities but were instead postliminary and noncompensable. The U. S. Court of Appeals for the Ninth Circuit reversed in relevant part, asserting that postshift activities that would ordinarily be classified as noncompensable postliminary activities are compensable as integral and indispensable to an employee’s principal activities if the postshift activities are necessary to the principal work and performed for the employer’s benefit. The United States Supreme Court held the time that respondents spent waiting to undergo and undergoing security screenings is not compensable under the FLSA.
Sandifer v. United States Steel Corp., 568 U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 12-417, filed 01/27/14). The time petitioners spend donning and doffing their protective gear is not compensable by operation of 29 U.S.C. §203(o).
Unknown Superior Court Case in New Jersey, (profiled on Policemag.com 10/14/14). Videos routinely captured by cameras mounted in police cars during traffic stops and other law enforcement activities are public records and cannot be withheld because they pertain to criminal or internal affairs investigations, a New Jersey state judge has ruled in two separate cases. The rulings, handed down Friday by state Superior Court Judge Vincent Grasso in Ocean County, came a month after Gov. Chris Christie signed legislation requiring all new police vehicles used primarily for traffic enforcement to be equipped with dashboard cameras, NJ.com reports.
The New York Times v. United States Dept. of Justice, ___ F.3d ___ (2nd Cir. No. 13-422-cv, filed 04/21/14). Plaintiff sought FOIA information on drone strikes. Defendants lodged a variety of reasons for denial and were granted summary judgment in a suit seeking the records. The 2nd Circuit affirmed in part and reversed concluding that (1) a redacted version of the OLC-DOD Memorandum must be disclosed, (2) a redacted version of the classified Vaughn index (described below) submitted by OLC must be disclosed, (3) [redacted], (4) the Glomar and “no number, no 1 list” responses are insufficiently justified, (5) DOD and CIA must submit Vaughn indices to the District Court for in camera inspection and determination of appropriate disclosure and appropriate redaction, and (6) the OIP search was sufficient.
State v. $17,023 In U.S. Currency (more or less), ___ Kan.App.2d ___, ___ P.3d ____ (No. 111048, filed 07/03/14). The state waited five months before filing its notice of forfeiture. The district court dismissed the action holding the state failed to comply with "the 90-day rule." The Court of Appeals reversed. The failure of the seizing agency to file a notice of pending forfeiture within 90 days of the seizure of property under the Kansas Standard Asset Seizure and Forfeiture
Act, K.S.A. 60-4101 et seq., does not deprive the district court of jurisdiction over the forfeiture action. But property seized for forfeiture must, upon request, be released to the owner or interest holder when the State fails to act within 90 days of the seizure by filing a notice of pending forfeiture or a judicial forfeiture action. K.S.A. 2013 Supp. 60-4109(a)(1).
Kaley v. United States, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 12-464, filed 02/25/14). When challenging the legality of a 21 U.S.C. section 853(e)(1) pre-trial asset seizure, a criminal defendant who has been indicted is not constitutionally entitled to contest a grand jury's determination of probable cause to believe the defendant committed the crimes charged.
State v. Fernandez-Torres, ___ Kan.App.2d ___, ___ P.3d ____ (No. 110645, filed 09/26/14). Lawrence detectives interrogated the suspect in a non-custodial interview about his indecent liberties with a 7-year old girl. They used a Spanish-speaking parole officer to translate, but the translation was inaccurate and incomplete at times. The State sought interlocutory review of the district court's order suppressing inculpatory statements. The district court found the circumstances of the interrogation rendered the statements involuntary, including problems with the Spanish-language translation, the officer's false representations about evidence supposedly implicating Fernandez (telling the suspect a doctor found his skin cells on the victim's vagina), and the officer's poorly translated suggestion that some sort of momentary though improper touching of the girl could be dealt with. The Court of Appeals affirmed, finding the record evidence supports the district court's factual findings.
State v. Garcia-Barron, ___ Kan.App.2d ___, ___ P.3d ____ (No. 109005, filed 07/03/14). Wichita officers were called to investigate a sexual assault. The suspect was interviewed in Spanish by a Spanish-speaking officer and confessed to sexual intercourse with a 15-year old girl. Defendant claims his rights were violated because he did not have an appointed interpreter pursuant to K.S.A. 75-4351. The Court of Appeals held that it did not matter, because the confession was voluntary. Failure to appoint an interpreter pursuant to K.S.A. 75-4351 et seq. does not, standing alone, render a defendant's statement involuntary. It is one factor that a court should consider when determining, from the totality of the circumstances. Suppression of a defendant's confession is not available as a remedy if that confession was freely, knowingly, and voluntarily made after a valid waiver of the defendant's Miranda rights. The interview here was only 10 minutes long, the suspect was not handcuffed and did not ask for anything, nor did he complaint of discomfort or duress. The waiver was adequately explained and the waiver was valid and not coerced.
United States v. Augustine, 2014 U.S. App. LEXIS 2976 (10th Cir. No. 12-3269, Kan. Feb. 19, 2014). Police officers established probable cause to obtain a warrant to search Augustine's residence for evidence of methamphetamine distribution. After being advised of his Miranda rights, Augustine agreed to be interviewed by two police officers without an attorney. At the beginning of the interview, Augustine told the officers he was not under the influence of alcohol or drugs; however, Augustine admitted he took a variety of prescription medications. Throughout the interview, Augustine indicated a desire to take his prescription medications, but he never told the officers that he could not or would not continue the interview without his medication. During the interview, Augustine made several incriminating statements. The government convicted Augustine on two counts of conspiracy to distribute methamphetamine. Augustine argued the search warrant affidavit did not establish probable cause to search his residence and his ability to properly waive his Miranda rights was impaired because he was under the influence of controlled substances during his interview with the police officers. Without deciding whether the search warrant application established probable cause, the court held the application established a minimal nexus between Augustine's residence and the drug-related items being sought in the warrant. Consequently, the court concluded the good-faith exception to the exclusionary rule applied. The court noted drug or alcohol use, by itself, is not enough to overcome evidence showing the defendant was sufficiently in touch with reality so he knew his rights and the consequences of waiving them. Here, the video recording of Augustine's interview and the testimonies of the interrogating officers did not establish that Augustine was so impaired that his waiver of his Miranda rights was invalid. In addition, even though Augustine may have been more comfortable with his medication, the absence of his medication did not cause Augustine to proceed with the interrogation involuntarily or in ignorance of the consequences of his actions or statements.
State v. Roeder, ___ Kan. ___, ___ P.3d ___ (No. 104520, filed 10/24/14). Roeder shot and killed Dr. George Tiller to prevent the Wichita doctor from performing any further abortions. He claimed, among other things, the district court erroneously denied his requested instruction on voluntary manslaughter based upon an imperfect defense-of-others; by failing to instruct on the necessity defense; by denying his requested second-degree murder instruction and defense-of-others instruction. The Court affirmed Roeder's convictions, finding he was not denied a fair trial. Where the defendant testified that he intentionally killed a specific person after having premeditated the murder for approximately 16 years, any error by the district court in refusing to give a lesser included offense instruction on second-degree murder based upon the killing being an instantaneous act was harmless beyond a reasonable doubt. Also, a perfect defense-of-others claim is not objectively reasonable where the perceived harm to be prevented will not occur until sometime in the future, i.e., where the other's unlawful use of force against a third person is not imminent.
State v. Waller, ___ Kan. ___, ___ P.3d ___ (No. 106102, filed 06/06/14). Waller and someone else robbed and killed someone. He was convicted of felony murder, but alleged the trial court should have given several lesser included offense instructions. The Supreme Court disagreed, based on the 2013 amendment to K.S.A. 21-5402 stating that felony murder did not have any lesser includeds, and it applies retroactively to Waller's 2010 crimes. Because it is a procedural rule, it does not violate Waller's rights under the Ex Post Facto Clause.
Sandifer v. United States Steel Corp., ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 12-417, filed 01/27/14). Summary judgment to defendant-employer in a putative collective action under the Fair Labor Standards Act of 1938, seeking backpay for time spent donning and doffing pieces of protective gear that they assert defendant-employer requires workers to wear because of hazards at its steel plants is affirmed, where: 1) 29 U. S. C. section 203(o) allows parties to collectively bargain over whether time spent in changing clothes at the beginning or end of each workday must be compensated; and 2) the time plaintiffs spend donning and doffing their protective gear is not compensable by operation of section 203(o) because it qualifies as "changing clothes" under that section.
Burwell v. Hobby Lobby, Inc., ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ and Conestoga Wood Specialties Corp. v. Burwell, (No. 13-354, filed 06/30/14). Christian business owners with religious objections to certain forms of birth control may refuse to provide their employees with insurance coverage for contraceptives. Requiring them to provide such coverage violates their religious freedoms under RFRA, 42 U. S. C. §2000bb et seq. In a 5-4 ruling, the justices decided the religious rights of these company owners trump the rights of female employees to receive the full contraceptive coverage promised by the law.
Noel Canning v. NLRB, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 12-1281, filed 06/26/14). Obama's recess appointments to the NLRB are invalid. The issue in the case is whether the U.S. Senate was in recess on January 4, 2012, when President Obama made three recess appointments to the NLRB of Sharon Block, Terry Flynn and Richard Griffin. The Senate had been meeting in "pro forma" sessions every three business delays, but was not conducting business. On that basis the President considered the Senate to be in recess and exercised his power to make recess appointments. He was wrong and his appointments were invalid.
State v. Julian, 300 Kan. 690, 333 P.3d 172 (2014) (No. 105695, filed 09/05/14), overruled by State v. James). In January 2010, a Rice County Deputy stopped Julian for driving a vehicle with a defective headlight, and arrested him for no proof of insurance. Just after the stop, the deputy noticed Julian making "furtive movements." He found a gun and drugs on Julian and drugs in his car. The district court supressed all the evidence. The Court of Appeals reversed. The Supreme Court affirmed the suppression. K.S.A. 22-2501 governed warrantless searches incident to arrest in Kansas at the time of this vehicle search. The statute set forth the permissible circumstances, purposes, and scope of such searches, and a warrantless search of a vehicle for evidence incident to arrest was not authorized and therefore was illegal. The Court of Appeals erred by relying on Fourth Amendment case law rather than the Kansas statute governing searches incident to arrest.
State v. Wilburn, ___ Kan.App.2d ___, ___ P.3d ____ (No. 110250, filed 08/15/14). The facts of this case are "a pit full of snakes that are swirling around with one another" combined with "a law school final in criminal procedure." But Dets. Pierce and Jordan were sent to investigate a fraud at Barnes and Noble, and stumbled on to an unrelated California theft and identity theft ring. Pierce stopped Wilburn and his buddy due to a "puppy dog look," when the detectives arrived at Oak Park Mall. Wilburn moved to suppress all the evidence alleging the stop was not supported by reasonable suspicion. Judges Bennett and Welch agreed and suppressed all the evidence. The Court of Appeals affirmed, holding that a puppy dog look was a mere hunch and not reasonable suspicion.
Riley v. California & United States v. Wurie, 573 U.S. ___, 134 S. Ct. 2473, 189 L. Ed. 2d 430 (No. 13–132 & 13-212, filed 06/25/14). Police may not conduct warrantless searches of cell phones incident to the arrest of the owner. "Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple—get a warrant." Riley was stopped for a traffic violation, which eventually led to his arrest on weapons charges. An officer searching Riley incident to the arrest seized a cell phone from Riley’s pants pocket. The officer accessed information on the phone and noticed the repeated use of a term associated with a street gang, CK or Crip Killers, a term used by Blood gang members. At the police station two hours later, a detective specializing in gangs further examined the phone’s digital contents. Based in part on photographs and videos that the detective found, the State charged Riley in connection with a shooting that had occurred a few weeks earlier and sought an enhanced sentence based on Riley’s gang membership. Riley moved to suppress all evidence that the police had obtained from his cell phone. Wurie was arrested after police observed him participate in an apparent drug sale. At the police station, the officers seized a cell phone from Wurie’s person and noticed that the phone was receiving multiple calls from a source identified as "my house" on its external screen. The officers opened the phone, accessed its call log, determined the number associated with the "my house" label, and traced that number to what they suspected was Wurie’s apartment. They secured a search warrant and found 215 grams of crack cocaine, marijuana, drug paraphernalia, a firearm and ammunition, and cash in the ensuing search. Wurie was then charged with drug and firearm offenses. The United States Supreme Court held that both warrantless searches violated the Fourth Amendment. Balancing the degree such a search intrudes upon an individual’s privacy and the degree to which it is needed for the promotion of legitimate governmental interests, the Court held the balance clearly favors an individual's right to privacy. The traditional reasons to allow search incident to arrest; harm to officers and destruction of evidence are not implicated by when the target of the search is digital data on a cell phone. "The term 'cell phone' is itself misleading shorthand; many of these devices are in fact minicomputers that also happen to have the capacity to be used as a telephone. They could just as easily be called cameras, video players, rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps, or newspapers." A search of the wide variety of information on a cell phone bears little resemblance to the type of brief physical search of items on the person of an arrestee considered in past cases. Remote wiping and data encryption are speculative risks to the concern for disappearance of evidence. If police are truly confronted with a ‘now or never’ situation, they may be able to rely on exigent circumstances to search the phone immediately.
United States v. Davis, ___ F.3d ___ (11th Cir. No. 12-12928, filed 06/11/14) reh'g en banc granted 09/04/14. Admission of location evidence based on stored cell site information obtained by the prosecution without a warrant violated the Defendant's Fourth Amendment rights. The prosecution obtained site information showing that Davis was at or near the scene of several robberies. The evidence was obtained not by warrant under 18 U.S.C. § 2703 subsection (c)(A), but by order under subsection (d). That section does not require probable cause, but only a showing “that there are reasonable grounds to believe that the . . . records or other information sought, are relevant and material to an ongoing criminal investigation.” 18 U.S.C. § 2703(d). However, the Court applied the Leon exception and held that admission of the evidence was not reversible error.
State v. Pettay, ___ Kan. ___, ___ P.3d ___ (No. 107673, filed 06/06/14). The Kansas Supreme Court finally definitively answered whether the good faith exception would save a search later declared illegal by Arizona v. Gant, and held it would not. Pettay was stopped for a traffic violation, arrested for a suspended license, and his car was searched incident to his arrest and drugs were found therein 2 days before the Gant decision. The state conceded the search was unlawful under Gant and Henning, and the Court viewed the only question as whether the appropriate remedy was to suppress the illegally seized evidence. Adopting a very narrow reading of immediate presence in K.S.A. 22-2501 as it existed at the time, the Court said that after "Conn and Anderson, a law enforcement officer conducting a search incident to arrest could not objectively reasonably rely on federal caselaw to enlarge the physical scope set out in K.S.A. 22-2501 beyond the statute's plain language, which limited the search to the subject's "immediate presence." The Court placed great weight on the fact that Pettay was handcuffed and secured in a patrol car at the time of the search.
State v. Powell, ___ Kan. ___, ___ P.3d ___ (No. 102749, filed 06/06/14, reversing State v. Powell, 45 Kan. App. 2d 1090, 257 P.3d 1244 (2011). Powell stole and damaged a police car and other property. Police obtained a warrant to collect blood and tissue from Powell, but failed to mention in their search warrant affidavit that blood and tissue were found in the police car. Powell tried to have DNA match testimony excluded, but the Court rejected his attempts, holding the Leon good faith exception applied because police actually obtained a warrant. The Supremes reversed, holding the warrant was deficient because it failed to establish a nexus between the evidence sought (the biological material identified) and that evidence's ability to aid in the apprehension or conviction of the crime's perpetrators. The application did not clearly identify the crime alleged. nor explain how the biological material sought would aid in prosecuting the crime. The Court found the omission "especially troublesome given that the evidence sought from Powell involved intrusions beyond the human body's surface without any justification alleged in the warrant for that intrusion."
State v. Keenan, 50 Kan.App.2d 358, 325 P.3d 1192 (No. 108550 filed 05/30/14, affirmed ___ Kan. ___, ___ P.3d ___ (No. 108550, filed 08/18/16). A Lenexa officer was dispatched to Keenan's house on a report from Keenan's child's grandmother that Keenan might be: (a) violating a PFA and (b) operating a vehicle with a child inside while intoxicated. The officer arrived and saw Keenan pull into the driveway. She made contact with Keenan who asked if he could put his child inside the house, and she noticed an odor of an alcoholic beverage, and poor balance and coordination. Keenan was on his cell phone the whole time he was making his way into the house, and he refused officers' request to enter. They entered anyway due to a concern for disappearance of evidence. After a brief dust-up with Keenan, officers recovered open containers from his vehicle and charged Keenan with felony DUI, third offense, refusing a preliminary breath test, and transporting an open container. Keenan alleged all evidence should be suppressed due to officers' warrantless entry. Judge Davis denied the motion. The Court of Appeals affirmed, holding the totality of the circumstances supports a finding of probable cause to arrest Keenan for violating a PFA and a possible DUI, and exigent circumstances excused their warrantless entry. The Court distinguished Welsh v. Wisconsin, 466 U.S. 740, 104 S. Ct. 2091, 80 L. Ed. 2d 732 (1984), because Kansas DUIs and PFA violations are jailable offenses. Also, the Court determined the officers were in hot pursuit because Keenan was trying to retreat into his house from an arrest that was "set in motion in a public place." See United States v. Santana, 427 U.S. 38, 43, 96 S. Ct. 2406, 49 L. Ed. 2d 300 (1976). The Court included this cautionary language in its conclusion: "With this holding we are not establishing a bright-line rule to approve the warrantless entry into the house of a driver suspected of being under the influence of alcohol. When considering the totality of the circumstances, we are only saying the facts of this case reflect the officers' warrantless entry into Keenan's house was justified and reasonable."
State v. Riess, ___ Kan. ___, ___ P.3d ___ (No. 102071, filed 05/02/14), reversing 45 Kan. App. 2d 85, 244 P.3d 693 (2010). See factual summary in Riess below. The Kansas Supreme Court reversed, and held that Riess was detained when he complied with the Officer's order to return to his truck, and at that point there was no reasonable suspicion to detain. It reversed his felony DUI conviction and remanded the case to the district court for further proceedings.
State v. Neighbors, ___ Kan. ___, ___ P.3d ___ (No. 105588, filed 04/25/14). Cops entered Neighbors' house after a landlord found him unresponsive in an apartment and did not recognize him as a tenant. Police eventually determined that while he was not a tenant, he was there with the tenant's permission. During the investigation, a narcotics officer recognized Neighbor's and his girlfrieind's name when officers ran them for warrants, and the narcotics officer showed up and begain looking around the apartment for drugs. He eventually found some. The Supreme Court held that officers exceeded their justification for the warrantless entry because the emergency aid doctrine dissipated once officers determined that Neighbors did not need medical assistance and had permission to be there.
Navarette v. California, 568 U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 12-9490, filed 04/22/14). A motorist's anonymous tip about reckless driving is enough for police to pull over a car, without an officer's corroboration of dangerous driving. Two men who pleaded to guilty to transporting marijuana after California Highway Patrol officers pulled over their silver Ford 150 pickup based on a report of reckless driving. The officers did not observe erratic driving, but acted after dispatchers received a 911 call saying the vehicle had run the caller off the road and identifying it by its model, color and license plate. Officers searched the truck after smelling marijuana, found four large bags of it and arrested driver Lorenzo Prado Navarette and passenger Jose Prado Navarette. The Supreme Court affirmed, holding the totality of the circumstances lead to a reasonable suspicion the driver was intoxicated.
State v. Englund, ___ Kan.App.2d ___, ___ P.3d ____ (No. 108446, filed 04/11/14). Englund, a Franklin County resident, committed some burglaries in Lawrence. Lawrence police obtained a search warrant from a Douglas county judge for Englund's residence in Franklin county and found incriminating evidence. Englund claims the evidence should have been suppressed because the warrant unlawfully authorized a search of a residence outside the territorial
jurisdiction of the judge who issued it. The Court of Appeals disagreed. It considered K.S.A. 22-2503 and K.S.A. 22-2505 together, two statutes enacted at the same time and that K.S.A. 62-1830 (Corrick 1964) was repealed, the legislature's intent is clear: district magistrates may no longer issue search warrants outside their home judicial district, but district judges can. Thus, we conclude the district court did not err in refusing to suppress the evidence obtained in the search of Englund's residence in Franklin County.
United States v. Chavez, ___ F.3d ___ (10th Cir. No. 13-4098, filed 04/10/14). Officers violated the Fourth Amendment, when pursuant to an arrest warrant for Chavez, they entered the back yard of a residence, looked through venetian blinds into the residence and saw Chavez (a convicted felon) with a gun. In United States v. Gay, 240 F.3d 1222, 1226 (10th Cir. 2001) the court interpreted Payton v. New York as creating a two-part test to determine when officers are justified in entering a home based on an arrest warrant. The "officers must have a reasonable belief the arrestee (1) lived in the residence, and (2) is within the residence at the time of entry." The court of appeals then stated that they did not need to decide whether the officers had a reasonable belief that Chavez lived at that residence, because even if they did, the officers did not have a reasonable belief that Chavez was present in the residence at the time the detective entered the back yard area and looked through the blinds.
State v. Stevenson, ___ Kan. ___, ___ P.3d ___ (No. 104115, filed 03/28/14), reversing 46 Kan. App. 2d 474, 262 P.3d 689 (No. 104115, filed 09/16/11). Sedgwick County officers stopped a vehicle driven by Stevenson for failing to signal the intent to turn within the appropriate distance. They had seen the vehicle leaving a known drug house, and stopped it on a pretext. Stevenson was the sole occupant. Officers noted an "extremely strong odor" of alcohol coming from the vehicle. Officers removed Stevenson for FSTs, and testified that a very strong odor of alcohol remained in the vehicle once Stevenson stepped out. The officers determined that Stevenson was not under the influence of alcohol and then searched the vehicle based on the odor. Officers found a large bottle of wine in the backseat of the vehicle that had leaked a large quantity of red wine onto the floorboard behind the driver's seat. They also found two pipes with methamphetamine residue and digital scales in the center console. Stevenson challenged the search, claiming odor alone did not establish probable cause. The Court of Appeals disagreed. Once Stephenson was removed from the car and it was determined that he was not intoxicated, the clear source of the "very strong" odor of alcohol was the interior of the car. In fact, it was so strong the officers immediately associated the odor with an open container that had spilled in the vehicle, certainly a fair inference. If the alcohol was being transported legally in an unopened container, it would not have a detectable odor. It was reasonable for the officers to act on their suspicions, rather than ignore evidence which signals a crime. Finally, Gant did not abrogate the automobile exception. The Supreme Court, however, agreed with Judge Buser's dissent and held there was no probable cause since no Kansas appellate court previously has held the odor of a legal substance may provide the sole basis to justify a warrantless search of an automobile based upon probable cause to believe the vehicle contained contraband or evidence of a crime. According to the Supreme Court, it would not be enough for the officers to merely believe that there was a fair probability they would find alcohol in Stevenson's vehicle. Rather, they had to reasonably believe that Stevenson had unlawfully transported in violation of K.S.A. 8-1599, any alcohol that might be found in the vehicle.
United States v. Harmon, 2014 U.S. App. LEXIS 1525 (10th Cir. N.M. Jan. 27, 2014). A police officer stopped Harmon after the officer saw Harmon's car weaving within his lane and the front and rear passenger tires of Harmon's car cross over the outer white line, or fog line, one time. The officer believed touching the fog line violated New Mexico law and was concerned that Harmon might be intoxicated or fatigued. After issuing Harmon a written warning for failing to maintain a lane, the officer obtained consent to search Harmon's car. During the search, the officer found packages of marijuana and cocaine hidden in the spare tire. The government indicted Harmon for two drug offenses. Harmon argued on appeal the officer did not have reasonable suspicion to justify the traffic stop. The court disagreed. The court noted the officer saw Harmon's car weaving and that its front and rear passenger wheels crossed the fog line. In addition, the court stated there was no evidence indicating difficult driving conditions or adverse weather existed that could have explained Harmon's driving errors. Consequently, the combination of these facts gave the officer reasonable suspicion to stop Harmon to investigate whether he was driving while impaired.
United States v. Gordon, 741 F.3d 64, 2014 U.S. App. LEXIS 1524 (10th Cir. Utah Jan. 27, 2014). Brandi Thaxton called 911 to report an incident of domestic violence that had occurred two days earlier. Thaxton, who was upset and crying, told the dispatcher her boyfriend, Gordon, assaulted her and broke her glasses. Thaxton also said Gordon had swung a samurai sword at her and told the dispatcher she believed Gordon would harm her after he found out she had called the police. Police officers responded to Gordon's house and entered without Gordon's consent. After an officer located Thaxton hiding in the basement, Thaxton led the officer upstairs to a bedroom to show him her broken glasses. Near the bedroom door, the officer saw a gun case, which contained a loaded shotgun. The officer seized the shotgun and three swords he found in the hallway. After the officer arrested Gordon for aggravated assault and Thaxton was transported by EMS to the hospital, the officer locked the house and transported Gordon to the county jail. On the way to the jail, while still in possession of Gordon's shotgun, the officer learned Gordon was a convicted felon. The government indicted Gordon for being in possession of a firearm. Gordon argued the shotgun should have been suppressed because the officers violated the Fourth Amendment by entering his house without a warrant or his consent and then seizing his shotgun without justification. First, the court held the officers' entry into Gordon's house was reasonable due to exigent circumstances. Even though Gordon assaulted Thaxton two days earlier, when the officers entered Gordon's house they knew Thaxton was upset, crying and afraid she would be seriously harmed when Gordon discovered she had called the police. Second, the court held it was reasonable for the officer to accompany Thaxton from the basement to the upstairs bedroom to retrieve her glasses. Third, the court held it was reasonable for the officer to initially seize Gordon's shotgun for safety reasons when the officer first saw it. However, once Gordon was in custody on the way to jail, and the house was secured, the court concluded the officer had no legal justification to continue his seizure of Gordon's shotgun. The court emphasized the plain view doctrine did not apply because the officer did not discover incriminating nature of the shotgun, specifically that Gordon was a convicted felon and could not lawfully possess a firearm, until he was transporting Gordon to jail. Finally, the court explained while the officer's only mistake was not returning the shotgun before securing Gordon's house, only a few minutes elapsed between the time the officer locked the house and discovered Gordon was a convicted felon. Because this amount of time was a de minimis intrusion Gordon's rights, and Gordon was lawfully in custody at the time, the court held suppression of the shotgun was not warranted.
United States v. Wells, 739 F.3d 511 (10th Cir. Okla. 2014). Federal agents suspected Officer Gray, a Tulsa police officer, was stealing money and drugs from suspects he detained. An undercover federal agent posed as a drug dealer named Joker and rented a motel room in Tulsa, which was outfitted with hidden audio and video recording equipment. In addition, there was $13,620 in government funds hidden in the room. After federal agents instructed a cooperating witness to tell Gray a drug dealer with large quantities of drugs and cash was conducting business from the motel room, Officer Gray, Officer Wells and Officer Hill went to the motel and encountered Joker in the lobby. The officers handcuffed Joker and detained him in a patrol car. After Wells obtained Joker's consent to search, Wells and Gray went to Joker's room. The audio and video recordings in Joker's room established Wells and Gray stole $2,000 from the room and later allowed other officers to take an additional amount of money. The government indicted Wells for a variety of offenses involving official corruption. Wells argued the trial court should have suppressed the audio and video recordings that documented his activities in the motel room because Joker was not present in the room when these activities were captured. First, while 18 U.S.C. §§ 2510-2520 (Title III) regulates the interception and recording of audio communications, the court stated Title III only applies to communications that are made where the speaker has a reasonable expectation of privacy. Similarly, video surveillance will not violate the Fourth Amendment if the person whose actions are being recorded has no reasonable expectation of privacy at the time of the surveillance. Second, the court noted the Tenth Circuit has not been generous in recognizing the privacy rights of individuals found in hotel or motel rooms that were not rented in their names. The Tenth Circuit has required that such individuals present evidence establishing they are guests of the renter, rather than individuals merely present on the premises. In this case, Wells was not Joker's guest nor did he have any socially meaningful connection to the motel room. After obtaining Joker's consent to enter the room, Wells spent approximately fifteen minutes in the room outside Joker's presence. Wells was merely legally present in the room for a very limited amount of time. Consequently, the court concluded Wells did not have a reasonable expectation of privacy in any of his communications in Joker's motel room when he was outside Joker's presence.
State v. Patterson, ___ Kan.App.2d ___, ___ P.3d ____ (No. 109995, filed 02/28/14). Wichita officers executed a drug warrant at an address, and searched a white Mercedes parked in the driveway. Officers recovered evidence of drug offenses from the Mercedes. Defendant alleges the Mercedes was outside the scope of the warrant. The Court of Appeals disagreed, finding Mercedes was within the residence's curtilage, and Kansas warrants include the curtilage and vehicles therein.
Fernandez v. California, 568 U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 12-7822, filed 02/24/14). The suspect was arrested by police after his girlfriend allowed officers to search the couple's apartment. Abel Lopez was attacked and robbed on Oct. 12, 1999 by a man he later identified as Walter Fernandez, a member of the Drifters gang. After Lopez called 911, LAPD Detective Kelly Clark and Officer Joseph Cirrito responded to Magnolia Avenue and 14th Street. An investigation led them to an apartment in a house just off a known gang alley. The officers heard the screams of Fernandez girlfriend, Roxanne Rojas. After knocking on the door, Rojas answered with a bruised nose and bloody hand. Detectives requested entry and Fernandez stepped forward and refused. They arrested Fernandez and took him to jail. Approximately one hour later, Detective Clark returned to the apartment and informed Rojas that Fernandez had been arrested. Detective Clark requested and received both oral and written consent from Rojas to search the premises. Rojas consented verbally and in writing. A search of the apartment revealed gang paraphernalia, a butterfly knife, a shotgun, and ammunition. Fernandez was later found guilty by a jury on the robbery charge. On appeal, he argued the trial court improperly denied his motion to suppress. The appellate court ruled the search was lawful, and the Supreme Court affirmed. It held that Georgia v. Randolph does not apply if the objecting occupant is absent when another occupant consents.
United States v. Christy, 739 F.3d 534 (2014)(No. 12–2127, 2014 WL 26455). Officers were investigating a pervert suspected of transporting a female 16 year-old girl from California to New Mexico and back. Detectives identified Christy and obtained his cell phone records, showing that he had traveled from New Mexico to California and back. The California detectives asked New Mexico officers to go to Christy's home to look for K.Y. An officer walked to the rear of the home and peered through the blinds. He saw K.Y. wearing a bra and panties, smiling and holding a rope. He reported his observations to a supervisor and asked for permission to force entry into the home. He then looked through the blinds again and saw that K.Y. was now bound by the rope and she was no longer wearing the bra. The officer also saw camera flashes. When other officers arrived, they forced entry into the home and arrested Christy. During a protective sweep, the officers saw pornography. Christy was interviewed. He admitted to picking up K.Y. in California, bringing her to New Mexico and to having sex with her. Officers obtained a search warrant for his home. They found sex toys, condoms and child pornography, including child pornography manufactured by Christy and showing K.Y. Christy asked the court to suppress evidence obtained during the initial entry and during the search warrant execution, claiming that there were insufficient exigent circumstances for a warrantless entry. The trial district court agreed that the officer lacked justification to make the warrantless entry. However, the judge declined to suppress the evidence, applying the inevitable discovery rule and finding that the officers would have obtained a search warrant even if they had not entered. The 10th Circuit agreed, reaffirming the notion that the inevitable-discovery doctrine requires only that the lawful means of discovery be independent of the constitutional violation. Under the majority view, an effort to obtain a warrant is but one factor of the inevitable discovery doctrine. The court must have a "high level of confidence" that the warrant would have (not merely could have) been issued, if the application process had been completed. The court cautioned officers against trying to "game the system" and avoid obtaining a warrant. In this case there was a strong showing of probable cause that would have lead to a warrant to enter the home to search for the missing girl. Officers had obtained warrants in the past under similar circumstances and were familiar with the warrant application process. The officer knew of the significant age difference between Christy and his victim, that the two had exchanged sexually-explicit images, that Christy had taken K.Y. across state lines, that K.Y. was depressed and suicidal, and the officer saw K.Y. nude and bound with a rope. Thus the evidence was properly admitted and the conviction upheld.
State v. Murdock, ___ Kan. ___, ___ P.3d ___ (No. 104533, filed 05/02/14, unchanged on rehearing 09/19/14). When calculating a defendant's criminal history that includes out-of-state convictions committed prior to enactment of the Kansas Sentencing Guidelines Act, K.S.A. 21-4701 et seq., the out-of-state convictions must be classified as nonperson offenses. Prior caselaw contrary to this holding is overruled.
Burrage v. United States, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 12-7515, filed 01/27/14). Defendant's conviction for unlawfully distributing heroin where death resulted from the use of that substance, which subjected him to a 20-year mandatory minimum sentence under the penalty enhancement provision of the Controlled Substances Act, is reversed and remanded, where at least where use of the drug distributed by the defendant is not an independently sufficient cause of the victim’s death or serious bodily injury, a defendant cannot be liable for penalty enhancement under the Controlled Substances Act unless such use is a but-for cause of the death or injury.
Dester v. Dester, ___ Kan.App.2d ___, ___ P.3d ____ (No. 111115 filed 09/19/14). Chad couldn't get over his divorce from Melissa, causing her to get a protection from stalking order against him in 2011. The Court renewed it in 2012 and 2013. Chad argued that the court could only extend it once because it was issued under the 2011 version of K.S.A. 60-31a06(b). Not so, according to the Court of Appeals. (1) The provisions of the Act are to be liberally construed to protect victims of stalking; (2) the relevant amendments to the Act extend the remedies in the event stalking is proven; (3) the 2012 amendments to the Act have retroactive application to pending PFS actions; and (4) the retroactive application of these amendments does not violate Chad's due process rights as he does not have a vested right which is implicated by the retroactive effect of the amendments.
State v. Williams, ___ Kan. ___, ___ P.3d ___ (No. 102036, filed 06/27/14), affirming State v. Williams, 46 Kan. App. 2d 36, 257 P.3d 849 (2011). A Dallas detective found a 15-year old prostituting in Dallas, and it turned out she was working for "Pressure," a/k/a Williams. The jury found Williams guilty of aggravated trafficking under K.S.A. 21-3447(a)(2). The district court imposed a downward durational departure sentence of 246 months' imprisonment. Williams raised a variety of issues, but the Supreme Court upheld the constitutionality of K.S.A. 21-3447(a)(2), concluding the provision is not overbroad. Also, because Williams' conduct clearly fell within the terms of K.S.A. 21-3447(a)(2), the Court determined that Williams lacked standing to raise an argument that the provision is unconstitutionally vague. The Court also rejected Williams' other arguments: that aggravated trafficking is identical to the offense of promoting prostitution, promoting prostitution is a more specific offense than aggravated trafficking, the prosecutor committed misconduct, and the district court should have submitted the question of his criminal history to a jury.
Bland v. Roberts, ___ F.3d ___ (4th Cir. No. 12-1671, filed 09/23/13). A Facebook "like" is speech that is protected by the First Amendment. Liking a political candidate’s campaign page "is the Internet equivalent of displaying a political sign in one’s front yard, which the Supreme Court has held is substantive speech," the court said. The court ruled on behalf of jailer Daniel Carter, who lost his job after Hampton, Va., Sheriff B.J. Roberts won re-election. Carter had backed Roberts’ opponent and liked his Facebook page. The court ruled the sheriff did not have to pay money damages because he was entitled to qualified immunity, but he is not protected from the remedy of reinstatement, according to the National Law Journal account. Carter was one of six employees who sued after their firing, but the only employee to raise the Facebook "like" issue.
Woollard v. Sheridan, ___ F.3d ___ (4th Cir. No. 12-1437 filed 03/21/13, cert. denied ___ U.S. ___ 10/15/13). Maryland`s handgun regulation statute does not violate the Second Amendment to the United States Constitution insofar as it requires an applicant to demonstrate "good and substantial reason" for the issuance of a handgun permit. Plaintiffs Raymond Woollard and The Second Amendment Foundation brought suit against Terrence Sheridan, Secretary of the Maryland State Police, and three members of the Maryland Handgun Permit Review Board. Woollard was denied a second renewal of his permit, and appealed claiming the "may issue" aspect of the law violates the Second Amendment. "In summary, although we assume that Appellee Woollard’s Second Amendment right is burdened by the good-and-substantial reason requirement, we further conclude that such burden is constitutionally permissible.
Montana Shooting Sports Association v. Montana, ___ F.3d ___ (9th Cir. No. 10-36094, filed 08/23/13). The Ninth Circuit ruled against a Montana state law like the one in Kansas that declares federal firearms regulations don’t apply to guns made and kept in the state. The 9th Circuit doesn’t include Kansas, but the decision focuses on a law that is similar to the Second Amendment Protection Act, which was approved by the Kansas Legislature this year and signed by Gov. Sam Brownback. The plaintiffs were a gun manufacturer and a shooting club that challenged the application of federal gun regulations to them, relying on the Montana law. The district court dismissed the action because no plaintiff had standing and, in the alternative, because the complaint failed to state a claim. The Ninth Circuit disagreed on the standing issue, but affirmed on the failure to state a claim, holding the Montana law was preempted by federal firearm regulations. Plaintiffs argued that the Supreme Court's Commerce Clause jurisprudence illustrated in Gonzales v. Raich, 545 U.S. 1, 22 (2005)(Congress may regulate marijuana because it substantially affects interstate commerce), should be narrowly confined to its facts, but the Ninth Circuit rejected this claim, stating, "[t]here is no language in Raich limiting its principles to "'national defense"' concerns.
Laigaie v. City of Bellingham, Wash. Case No. unknown (profiled on web 08-16-13). John Laigaie is a retired military man who has always carried a handgun on his hip. "It's my job, it's what I do," he said. "I protect myself and my family." He's also a gun rights activist who firmly believes in his constitutional right to bear arms. So when a Bellingham police officer challenged him for doing just that at Bloedel-Donovan Park, he argued with him. Laigaie knew that Washington is an "open carry" state where it is allowed. He even offered the officer, Allen Bass, a copy of that law when Bass asked for his identification. When Laigaie refused to hand over his ID, he said the officer pulled out his own weapon and pointed it at him. "A couple of times, he had it right in my chest and that was 6, 7 inches from muzzle to flesh," Laigaie said. Laigaie demanded that the officer put the weapon away. "I wasn't breaking the law, I was well within the law and he had no right to do that. I don't like being bullied," he said. Laigaie said he never touched his own gun, just continued to clutch the leashes of the dogs he was walking. He said everything calmed down after two other men in the park approached the pair, and told the officer that carrying a holstered weapon in Washington was legal. Laigaie filed a complaint against the city claiming his civil rights were violated. As part of a civil settlement, Laigaie was awarded $15,000. He was also told that all police officers and 911 dispatchers in the city will be trained in open carry laws. The Bellingham Police Department declined requests for an interview.
Kachalsky v. Cacace, ___ F.3d ___ (2nd Cir. No. _____, filed //13, cert. denied 4/15/13. A New York law requires gun owners seeking a "concealed carry" permit to demonstrate a special need for self-protection. The 2nd Circuit upheld the law, which is similar to laws in California, Hawaii, Maryland, Massachusetts and New Jersey. In December, the Chicago-based 7th U.S. Circuit Court of Appeals issued a contrary ruling, striking down an Illinois law that barred most citizens from carrying guns outside the home. According to SCOTUSblog, there is a “clear split” among the federal appeals courts on whether the Second Amendment protects gun rights outside the home, "and yet that was not sufficient to draw the court back into the center of the controversy."
Woollard v. Gallagher, ___ F.3d ___ (4th Cir. No. 12-1437, filed 03/21/13). Maryland employs a "may issue" concealed carry scheme. It essentially requires that a person show "good-and-substantial reason" for needing to carry a firearm in public - concealed or open. Exceptions exist for things such as sporting and transporting firearms to and from stores. Certain individuals are basically guaranteed a permit (judges, prosecutors, public defenders, police officers, etc.). Raymond Woollard was initially approved for a permit after his drug-addict son-in-law broke into his home on Christmas and tried to steal their car. An armed confrontation ensued and violence was averted when Woollard’s son subdued the intruder with a shotgun. Woollard got his permit, as well as one renewal, but was denied a second renewal when he was unable to show any indication of need beyond the now six-year-old break in. Woollard sued, and the district court enjoined enforcement of the "may issue," law, deciding it violated the 2nd Amendment. The Fourth Circuit reversed, calling the district court's judgment a," trailblazing pronouncement that the Second Amendment right to keep and bear arms for the purpose of self-defense extends outside the home." See Woollard v. Sheridan, 863 F. Supp.2d 462 (D. Md. 2012). Stating its disagreement with the district court's conclusion that the good-and-substantial-reason requirement cannot pass constitutional muster, it reversed without "needlessly demarcating the reach of the Second Amendment."
We hew to a judicious course today, refraining from any assessment of whether Maryland’s good-and-substantial- reason requirement for obtaining a handgun permit implicates Second Amendment protections. That is, we merely assume that the Heller right exists outside the home and that such right of Appellee Woollard has been infringed. We are free to make that assumption because the good-and-substantial-reason requirement passes constitutional muster under what we have deemed to be the applicable standard — intermediate scrutiny.
Peterson v. Martinez, 707 F.3d 1197 (10th Cir. No. 11-1149, filed 02/22/13). Gray Peterson sued Denver and Colorado’s Department of Public Safety claiming that being denied a concealed-weapons permit because he was not a Colorado resident violated his Second Amendment right to bear firearms. The 10th Circuit ruled that carrying concealed firearms is not protected by the Second Amendment or the Privileges and Immunities Clause, nor is the right of people to keep and bear arms infringed upon by laws prohibiting the carrying of concealed weapons. "Given that the concealed carrying of firearms has not been recognized as a right, and the fact that concealed carry was prohibited for resident and non-resident alike for much of our history, we cannot declare this activity sufficiently basic to the livelihood of the Nation."
State v. Cooper, ___ Kan.App.2d ___, ___ P.3d ____ (No. 107222, filed 03/15/13). The Privileges and Immunities Clause of the Fourteenth Amendment does not preclude Kansas from enforcing its statutes criminalizing the possession of marijuana against a Colorado resident in this state with marijuana lawfully obtained under the laws of that state.
MCJS Inc., dba Reed's Ringside Sports Bar and Grill v. Kansas Dept. of Revenue, 49 Kan.App.2d 549, 555, 311 P.3d 1147 (No. 108788, filed 10/25/13). Although courts no longer give deference to the interpretation of a statute adopted by an administrative agency, In re Tax Appeal of LaFarge Midwest, 293 Kan. 1039, 1044, 271 P.3d 732 (2012), the director's decision that Reed's was strictly liable for serving alcohol to a minor is affirmed. The first sentence of K.S.A. 41-2615 prohibits licensees from "knowingly or unknowingly" permitting the possession or consumption of alcohol by a minor on the premises. Reed's "unknowingly permitted" service to a minor by merely allowing him to enter the premises and by serving alcohol in an area within his reach. The evidence established that the minor purchased or consumed on the premises, and it was unnecessary to establish that Reed's employees permitted the act by actually serving the beer to him or observed him drinking on the premises.
Florida v. Jardines, 569 U.S. ___, 133 S.Ct. 1409, ___ L.Ed.2d ___ (No. 11-564, 3/26/13). After receiving an anonymous tip that Joelis Jardines’ home was being used to grow marijuana, Drug Enforcement Agency ("DEA") officers conducted a warrantless surveillance of Jardines’ home. During the surveillance, a drug detection dog sniffed the exterior of the home and alerted to a smell of marijuana at the front door. Based on this positive alert, among other indications of marijuana production, the officers were granted a search warrant. The search confirmed that the house was being used as a marijuana grow house and Jardines was charged with drug trafficking and grand theft for stealing electricity. Jardines successfully moved to suppress evidence of the dog sniff outside his home by arguing that the sniff constituted an unreasonable search under the Fourth Amendment. The Florida Third District Court of Appeal reversed and held that the canine sniff was not a Fourth Amendment search. The Florida Supreme Court ultimately reversed the appellate court’s decision and held that a dog sniff is a substantial government intrusion into the sanctity of the home and constitutes a search within the meaning of the Fourth Amendment. The United States Supreme Court, in a 5-4 decision, agreed, limiting itself to the question of whether the officers’ behavior was a search within the meaning of the Fourth Amendment. Officers physically intruded onto the curtilage and were gathering information in an area belonging to Jardines. A person's right to retreat into the home would be significantly diminished if the police could enter a man’s property to observe his repose from just outside the front window. The typical "license" to approach, knock on the door and seek to engage the occupant is different from entering onto the porch to seek evidence of a violation of the law. " The scope of a license—express or implied—is limited not only to a particular area but also to a specific purpose." The dissent alleged the majority's interpretation relied on an unprecedented interpretation of trespass law. The majority concludes the officer "committed a trespass because he was accompanied during his otherwise lawful visit to the front door of respondent’s house by his dog, Franky. Where is the authority evidencing such a rule?" ___ U.S. ___, Alito, J., dissenting. Alito goes on to point out this entire transaction took less than a minute or two.
Florida v. Harris, 568 U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 11-817, 2/19/13). An alert by a well-trained narcotics detection dog certified to detect illegal contraband is sufficient to establish probable cause for the search of a vehicle, even if the dog alerts to substances he hasn't been trained to detect. Officer Wheetley stopped Clayton Harris’s truck for expired tags and searched the vehicle after his drug-detection dog alerted to the driver-side door handle. Officer Wheetley recovered precursors to methamphetamine, and at trial Harris alleged that Officer Wheetley did not have probable cause, or a reasonable basis, to search and violated his Fourth Amendment rights. On appeal, Harris argued that training alone cannot establish a dog’s reliability because there are no standard certification standards for drug-detection dogs, and dogs are likely to be influenced by outside factors that could affect their reliability. Florida asserts that certification of a dog should be sufficient to prove reliability, and to provide adequate basis for a search. The Supreme Court held that training and testing records supported the dog's reliability in detecting drugs, and that Harris failed to undermine that evidence, therefore, the officer had probable cause to search Harris’s truck. All that is required is the kind of “fair probability” on which “reasonable and prudent [people] act.” To evaluate whether the State has met this practical and common-sensical standard, the Court looks to the totality of the circumstances and rejects rigid rules, bright-line tests, and mechanistic inquiries. The Florida Supreme Court's strict evidentiary checklist to assess a drug-detection dog’s reliability flouts this established approach. Requiring the State to introduce comprehensive documentation of the dog’s prior hits and misses in the field, and holding that absent field records will preclude a finding of probable cause no matter how much other proof the State offers, is the antithesis of a totality-of-the-circumstances approach. This is made worse by the State Supreme Court’s treatment of field-performance records as the evidentiary gold standard when, in fact, such data may not capture a dog’s false negatives or may markedly overstate a dog’s false positives. Such inaccuracies do not taint records of a dog’s performance in standard training and certification settings, making that performance a better measure of a dog’s reliability. Field records may sometimes be relevant, but the court should evaluate all the evidence, and should not prescribe an inflexible set of requirements. Under the correct approach, a probable-cause hearing focusing on a dog’s alert should proceed much like any other, with the court allowing the parties to make their best case and evaluating the totality of the circumstances. The State introduced substantial evidence of Aldo’s training and his proficiency in finding drugs. Harris declined to challenge any aspect of that training or testing in the trial court, and the Court will not consider his arguments for the first time on appeal.
University of Kansas Hospital Authority v. Board of Commr's of Wabaunsee County, ___ Kan. ___, ___ P.3d ___ (No. 104236, filed 06/27/14). A KHP trooper arrested Ector Manuel Savala-Quintero, a/k/a Alberto Contreras Gonzalez, (Contreras) on drug charges. Those charges were resolved, and Contreras was released to Shawnee County on warrants and an ICE hold. Contreras bonded out of the Shawnee County jail on and returned to the Wabaunsee County courthouse to retrieve some personal items he had left at the jail, which is located on the fourth floor of the courthouse. He was let into the jail but they weren't going to release him, believing either that he was not out on bond or that the ICE hold required his detention. In any event, once Contreras realized he was being held, he jumped through the fourth-story window of an unlocked interrogation room. After Contreras hit the ground, he attempted to get up and run away, but he could not move because his hips were broken. The Court held the County was not obligated to pay the expenses because Contreras, although temporarily detained, was not a prisoner committed to or held in the county jail at the time he was injured and hospitalized. Note: The Court held the Hospital Authority waived all its contractual and statutory theories or recovery and only addressed recovery based on prior case law. The Court held that K.S.A. 19-1910 controls over the case law on which the Hospital Authority relies, and concluded that under K.S.A. 19-1910, the County would only be obligated to pay for Contreras' medical care if he had no resources to pay for his own care and if he was a prisoner committed to or held in the county jail, meaning he had been sentenced to jail; had been arrested and was being detained in jail while awaiting trial; had been apprehended and arrested and was to be detained in jail while awaiting trial but for his injuries; or had been otherwise committed to jail, such as in a civil commitment proceeding. Since none of these facts existed, the County was not liable.
Case Name Unknown, profiled on policeone.com 12/17/2013. The Los Angeles City Council on Tuesday agreed to pay nearly $6 million to a group of police officers who accused their superiors of imposing a secret traffic ticket quota system on the Westside. The lawsuits alleged that Lauer, a traffic Captain who ran the division starting in 2006, required officers to write at least 18 traffic tickets each shift and demanded that 80% of the citations be for major violations. Officers who failed to meet the minimums or raised concerns about them were reprimanded, denied overtime assignments, given undesirable work schedules and subjected to other forms of harassment, according to the lawsuits. In a few instances, Lauer attempted to kick officers out of the motorcycle unit, the lawsuits said. In a statement, Chief Charlie Beck defended the division's practices. Management set "goals" to reduce traffic violations that resulted in serious injury and death, Beck said, but the jury in a separate 2009 case interpreted that as quotas, he said. "We do not agree with the original jury's findings," he said. "Unfortunately the large jury award in the earlier court case made settling this case the most prudent business decision." The $5.9-million settlement approved Tuesday resolves two lawsuits filed in 2010 by 11 LAPD officers assigned to a motorcycle unit. The settlement, approved unanimously, brings to more than $10 million the amount of taxpayer money spent on payouts and legal fees from the ticket quota cases. But that number could grow because one more officer's case is still pending.
Stanton v. Sims, 568 U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 12-1217, filed 11/04/13). California officer Stanton received an unknown disturbance call involving a person with a baseball bat in a gang-infested area in La Mesa. As officers approached the call location they saw three men walking in the street, two of whom ducked into an apartment complex and one ran towards a house. Stanton ordered the one that went toward the house to stop, but the man refused, looked at him, then entered the front yard through a gate. The front yard was surrounded with a 6-foot tall privacy fence. Stanton kicked open the gate. Sims happened to be standing behind the gate and was injured. She sued, claiming the entry was unlawful. The 9th Circuit agreed, and held that the law was clearly established and Stanton should have known better. The Supreme Court summarily reversed. It noted the law on warrantless entries on misdemeanor offenses is still unsettled, and Stanton may have been mistaken in believing his actions were justified, but he was not "plainly incompetent." Compare, e.g., Middletown v. Flinchum, 95 Ohio St. 3d 43, 45, 765 N. E. 2d 330, 332 (2002) ("We . . . hold today that when officers, having identified themselves, are in hot pursuit of a suspect who flees to a house in order to avoid arrest, the police may enter without a warrant, regardless of whether the offense for which the suspect is being arrested is a misdemeanor"), and State v. Ricci, 144 N. H. 241, 244, 739 A. 2d 404, 407 (1999) ("the facts of this case demonstrate that the police had probable cause to arrest the defendant for the misdemeanor offense of disobeying a police officer" where the defendant had fled into his home with police officers in hot pursuit), with Mascorro v. Billings, 656 F. 3d 1198, 1207 (CA10 2011) ("The warrantless entry based on hot pursuit was not justified" where "[t]he intended arrest was for a traffic misdemeanor committed by a minor, with whom the officer was well acquainted, who had fled into his family home from which there was only one exit" (footnote omitted)), and Butler v. State, 309 Ark. 211, 217, 829 S. W. 2d 412, 415 (1992) ("even though Officer Sudduth might have been under the impression that he was in continuous pursuit of Butler for what he considered to be the crime of disorderly conduct, . . . since the crime is a minor offense, under these circumstances there is no exigent circumstance that would allow Officer Sudduth's warrantless entry into Butler's home for what is concededly, at most, a petty disturbance").
State v. Craddick, ___ Kan.App.2d ___, ___ P.3d ____ (No. 108335, filed 11/01/13). Under K.S.A. 2011 Supp. 21-5111(m), a pellet rifle is not a firearm because rather than propelling projectiles by force of an explosion or combustion, it propels projectiles by force of air or gas. Craddick was engaged in a disagreement with the victims about his dog, and pointed his Ruger Airhawk pellet rifle at victims and threatened to shoot them with his "rifle gun" if they did not put his dog on the ground. Craddick pled to attempted aggravated assault and the court sentenced him in accordance with the presentence investigation (PSI) report, which recommended the district court apply the special sentencing rule that changes a guidelines sentence from presumptive probation to presumptive prison if the person felony was committed with a firearm. The Court of Appeals reversed, holding the pellet rifle is not a firearm.
State v. Llamas, ___ Kan. ___, ___ P.3d ___ (No. 104827, filed 10/25/13). Llamas was with Navarro, who killed Flores by shooting him while Flores sat in his suburban. Depending on who you believe, Llamas drive himself and Navarro from the scene, or was a passenger and hung with Navarro immediately after the shooting. He was convicted of felony murder and criminal discharge of a firearm at an occupied vehicle, when he aided and abetted Michael Ismael Navarro, who actually discharged the firearm and killed Omar Flores. He alleged the evidence was insufficient to show anything other than he was merely present at the time of the shooting. The Court disagreed, finding there was sufficient evidence for the jury to believe that Llamas assisted Navarro in the shooting.
United States v. United States Border Patrol, court and case no. unknown, profiled on findlaw.com on September 26, 2013. The U.S. Border Patrol settled a racial profiling lawsuit with the American Civil Liberties Union and the Northwest Immigrant Rights Project. The settlement resolves a lawsuit that alleged agents were racially profiling people in a rural area of Washington state. As part of the settlement, the Border Patrol agreed to share records of every traffic stop it makes in Washington's Olympic Peninsula for 18 months. The lawsuit in Washington state was borne by mounting tensions between immigrants and Border Control agents on the Olympic Peninsula. Many immigrants from Mexico and Guatemala moved to the rural area to work in the forests picking salal, an ornamental leaf. In this case, Border Control agents allegedly stopped and interrogated three American citizens (on separate occasions) about their immigration status. In each instance, the agents never provided a reason for the stop. The government's attorneys sought a settlement after a judge denied their motion to dismiss the case. Though a settlement was reached, much to the dismay of immigrants' rights advocates, the Border Patrol admitted no wrongdoing in the settlement.
Guerena v. Pima County, court and case no. unknown - profiled on PoliceMagazine.com on 09/24/13. Pima County, Ariz., has agreed to settle a lawsuit over the fatal shooting of a Marine who pointed a gun at SWAT officers during a raid two years ago. County officials say they'll pay $3.4 million to end a two-year legal battle. The settlement closes out the county's dispute with Vanessa Guerena, the widow of a former Marine, Jose, who died in a barrage of police gunfire on May 5, 2011. The settlement also includes Marana, Oro Valley, and Sahuarita, which had officers in the raid. SWAT team members had arrived at the home of Jose Guerena, 26, southwest of Tucson after receiving information in a narcotics investigation that he may be involved in drug trafficking. Guerena was killed during the raid while holding an AR-15 rifle. Officers fired 71 shots; 22 struck Guerena. A Pima County Sheriff's Department spokeswoman told the Daily Star the agency disagrees with the settlement because even though the shooting was tragic, officers "performed that day in accordance with their training and nationally recognized standards." The county's administrator called he agreement a "calculated risk-management settlement." The officers were cleared in June of 2011, when Chief Criminal Deputy Attorney David Berkman released a report concluding officers needed to "take immediate action to stop the deadly threat against them." According to a commentor citing public information, one of the detectives claimed that Guerena had "five felony arrests involving drugs" but no convictions, which was not true. Guerena' widow stated that two members of her sister-in-law's family were killed previously in a home invasion, which may have led to a heightened level of anxiety for the inhabitants. Four officers fired the first volley, then a fifth joined. SWAT fired 71 shots in 7 seconds. Officers refused the deceased medical attention and somehow utilized 2 separate robots to investigate.
Univ. of Kansas Hospital Authority v. Unified Gov't. of Wyandotte County, 49 Kan. App. 2d 449, 313 P.3d 60 (2013, No. 108391, filed 09/13/13, affirmed No. 108391 filed 05/22/15). Plaintiffs sued to recover the cost of medical treatment provided to an arrested person. The facts are:
1.On November 5, 2008, Highway Patrol Trooper Greg Peters determined a vehicle was speeding in Wyandotte County and pursued it.
2.The driver of the speeding vehicle, Wayne Thomas, eventually crashed.
3.The Trooper arrested and handcuffed Thomas.
4.Trooper Peters drove Thomas to the University of Kansas Hospital, still handcuffed, where nursing personnel advised Peters that Thomas would be admitted.
5.Trooper Peters advised the nurses that Thomas was on a 'police hold'.
6.The next day, hospital personnel advised Peters that Thomas was ready for release.
7.Trooper Peters went to the hospital, handcuffed Thomas and took him to the Wyandotte County jail.
8.Thomas was charged in Wyandotte County District Court with eluding a police officer, a severity level 9, person felony.
9.Mr. Thomas was indigent and had no medical insurance.
10.The reasonable and necessary charges made for his care by plaintiff University of Kansas Hospital Authority totaled $23,197.29.
"11.The reasonable and necessary costs for his care by plaintiff Kansas University Physicians, Inc. totaled $2,311.00."
The district court denied the State's motion for summary judgment and granted summary judgment in favor of KU and against the State. The Court of Appeals affirmed based on K.S.A. 22-4612. The statute supersedes the prior policy enunciated in Wesley Med. Center v. City of Wichita, 237 Kan. 807, Syl. ¶¶ 2, 3, 703 P.2d 818 (1985), that a county would be held liable for the medical expenses of all offenders arrested for and subsequently charged with a violation of state law, regardless of which police agency made the arrest or whether such expenses were incurred before or after the offender was placed in the county jail.
Stormont-Vail Healthcare Inc. v. State of Kansas. Posted: September 10, 2013 - 3:55pm in the Topeka Capital-Journal. By Tim Hrenchir. Stormont-Vail HealthCare Inc. is suing the state of Kansas, Shawnee County and the city of Topeka seeking payment of medical bills incurred by a man hurt in a crash at the end of a vehicle chase in October 2010. Attorney E. Lou Bjorgaard filed a lawsuit petition on behalf of Stormont-Vail on Aug. 23 in Shawnee County District Court seeking damages of $21,198.14, plus costs and 10 percent interest from the date of Aug. 24, 2010. The petition said an officer with Capitol Police, which is part of the Kansas Highway Patrol, attempted on Aug. 23, 2010, to stop a car that led Capitol Police on a chase that ended when the car’s driver went southbound through a red light at S. Kansas Avenue and 29th Street and struck the side of a truck, which was being driven eastbound on 29th. The petition says Topeka police took possession of the driver’s belongings and took custody of blood drawn from him, while Shawnee County filed felony charges against him in December 2010. Topeka Capital-Journal archives show Robert R. Horton, the driver, was subsequently convicted of two counts of reckless aggravated battery — one involving bodily harm and the other involving great bodily harm — and remains an inmate at Norton Correctional Facility. The petition, while not specifically naming Horton, says his hospital bills totaled $75,441.03 while the Medicaid rate for his treatment was $21,198.14. "When the law enforcement officers brought the patient into Stormont, and requested that Stormont treat him, Stormont reasonably believed that defendant state of Kansas, defendant Shawnee County, or defendant city of Topeka, or all of them, would process the claims without delay and would pay Stormont for the treatment it provided," the petition said. That didn’t happen, it said. The petition cited laws it said mandate that:
• When a person is injured by a state law enforcement officer, the state shall be liable to pay for that person’s medical treatment.
• All other costs for medical treatment shall be borne by the county.
• The payment rate is to be the lesser of the billed charges or the Medicaid rate for the medical treatment of a person in the custody of a city, a county law enforcement agency or the highway patrol.
Wichita Claims. Wichita begins settling damage claims after standoff at apartments - Apartment complex tenants file more than $100,000 for damages. Posted in the Topeka Capital-Journal: September 11, 2013 - 7:52am By The Associated Press. WICHITA — The Wichita City Council has approved the first settlement in at least a dozen claims filed by tenants of an apartment complex damaged in a police standoff in July. The council on Tuesday approved a $20,000 settlement to Alyssa Cooper and Derrick Jochum. They lived together in one of the apartments damaged in the July 11 standoff with 24-year-old Jared Woosypiti, who was killed in a gunfight with police. Woosypiti, 24, was killed by police gunfire after he holed up in the complex after a chase. He was wanted for stabbing his girlfriend July 4 in Derby and for firing shots in a south Wichita Kmart later that month. The city faces at least a dozen claims for a total of more than $100,000 for damages caused by police during the 32-hour standoff. Officers fired tear gas, detonated explosive devices and shot water into the apartments. Six apartments were damaged. The city pays such claims out of its self-insurance fund. UPDATE: Wichita denied a $400,000 claim by an insurer for the complex, asserting that it was immune. This is after it paid out over $60,000 in claims to apartment tenants.
Kubert v. Best, ___ N.J.App. ___ (No. A-1128-12T4, filed 8/27/13). In a case of first impression, a New Jersey appeals court held that a remote texter can be held liable to third parties for injuries caused when the distracted driver has an accident. However, that is only true if the individual sending the texts from another location knew they were being viewed by the recipient as he or she was driving. In this case, Kyle Best was the driver and the text was sent by Shannon Colonna. Best hit and caused serious injury to two motorcyclists (Kuberts) less than 30 seconds after receiving a text from Colonna. Colonna moved for summary judgment alleging there was insufficient evidence to show that she knew Best was driving at the time she sent the text. The appeals court held that Colonna should have been granted summary judgment. "We conclude that a person sending text messages has a duty not to text someone who is driving if the texter knows, or has special reason to know, the recipient will view the text while driving. But we also conclude that plaintiffs have not presented sufficient evidence to prove that Colonna had such knowledge when she texted Best immediately before the accident." Colonna had sent two texts to Best on theafternoon the accident occurred, and the other one was sent about two hours before the accident. "Even if a reasonable inference can be drawn that she sent messages requiring responses, the act of sending such messages, by itself, is not active encouragement that the recipient read the text and respond immediately, that is, while driving and in violation of the law."
Allen v. Several Defendants, profiled on Findlaw August 29, 2013. A child porn victim from Pennsylvania is using a law that she inspired to sue her viewers. Masha Allen's lawsuit seeks $150,000 each from pedophiles -- including doctors, lawyers, and even her own father -- who've viewed sexually explicit images of her. "Masha's Law" is named for Allen, a Russian orphan adopted at age 5 by divorced Pittsburgh-area millionaire Matthew Mancuso. Over the course of five years, Mancuso turned Masha into a child porn Internet sensation by producing and circulating about 200 explicit images of her, some of which were taken at Disney World. Authorities believe the images have been viewed millions of times online. In 2003, Masha was rescued during a national investigation into Internet pedophiles. After she went public with her story, Congress passed Masha's Law. The law, which is included in the Adam Walsh Child Protection and Safety Act of 2006, allows child porn victims 18 and over to sue anyone caught with their explicit images. It's important to note that the law doesn't require an actual download; many successful prosecutions are completed through using residual images left on the viewer's computer. Under the law, Allen is entitled to a minimum payout of $150,000 from each man. While Allen is seeking the minimum amount from each offender, she may receive about $100 million as the lawsuits against the almost 2,000 men caught with her images grow. Masha, who now lives under another name, receives a notice from the U.S. Justice Department every time someone is caught with her images.
Estate of Zachary Champommier v. United States, (U.S.D.C. CA, profiled on Policemag.com 08/23/13). A federal judge has awarded $3 million to the family of an 18-year-old Southern California teenager who was shot and killed by a plainclothes federal agent. The ruling stems from the fatal shooting of Zachary Champommier by a Drug Enforcement Administration special agent in a Studio City parking lot in 2010. Champommier, a recent high school honors graduate, had headed to the parking lot to meet a friend, who was being detained by plain clothes task force officers who suspected him of breaking into vehicles. Champommier struck a Los Angeles County Sheriff's deputy while driving his mother's vehicle. A DEA agent then fatally shot the teen. U.S. District Judge Michael Fitzgerald said shooting at Champommier while he was in a moving car would not have helped the predicament of the DEA agents, reports the Los Angeles Times. However, Fitzgerald also ruled that the authorities were not negligent in their actions.
Lumry v. State, 49 Kan. App. 2d 276, 307 P.3d 232 (No. 108425, filed 08/16/13), reversed and remanded ___ Kan. ___, ___ P.3d ___ (No. 108425, filed 12/16/16). Lumry, a former KBI agent, sued the KBI as well as three of his former supervisors in their individual capacities for violating his rights under the Fair Labor Standards Act (FLSA) and for retaliatory discharge in violation of the Kansas Minimum Wage and Maximum Hours Law (KMWMHL). Lumry was fired for padding his timesheets. In his civil suit, Lumry claimed he was fired in retaliation for his complaints about working uncompensated overtime in violation of the FLSA. See 29 U.S.C. § 215(a)(3) (2006). The Court of Appeals found the majority rule in federal courts is that public officials may be held liable in their individual capacities for violations of the FLSA if they are acting in the interest of the agency and meet the definition of an employer. It then held that two of the supervisors named in the suit did not meet the definition of "employer" under the FLSA, so Lumry's claims against them necessarily fail. As to Blecha, the undisputed facts failed to establish that Lumry made an unequivocal claim under the FLSA for which the Blecha may have retaliated. Finally, Lumry's claim under the KMWMHL failed because the KMWMHL does not apply to any employer that is subject to the FLSA. The Court affirmed summary judgment for the defendants. Standridge, concurring in part and dissenting in part, would have allowed Lumry to proceed on a common-law claim of retaliatory discharge. See summary in 2016 cases for Supreme Court decision.
Case name unknown, profiled in Findlaw 8/6/13. Some recipients of red-light camera tickets in New Jersey are set to receive compensation for their trouble after a class action lawsuit against 18 municipalities settled for $4.2 million. Included in the class action suit was the red-light camera operator, American Traffic Solutions (ATS), which the suit alleged had failed, along with the 18 New Jersey cities, to comply with the requirements of the state's Pilot Red Light Camera Program. The red-light camera class action suit against ATS and the New Jersey towns included almost 500,000 drivers, each of whom is expected to receive a minimum of 10 percent of their ticket costs from the settlement fund. With the tickets costing about $85, that means a payout of at least $8.50 per driver. Aside from the fact that many cities are finding the cameras a drain on municipal resources with little positive result, the New Jersey suit is based on allegations that the red-light cameras were erroneously giving tickets to drivers. Though ATS and the cities deny any liability in proceeding with the settlement, the lawsuit alleges that the cameras installed throughout the state were "not properly maintained" and issued tickets even when drivers didn't run a red light. Some ticketed drivers claim that they either coasted through on a yellow light or were attempting to make a right turn on red. This issue of proof is one of the many reasons why red-light tickets are legally difficult to defend and increasingly easier to fight.
Roosevelt-Hennix v. Prickett, ___ F.3d ___ (10th Cir. No. 12-1307, filed 05/16/13)(U.S. App. LEXIS 9809). A Colorado police officer used a Taser on plaintiff while her hands were cuffed behind her back and she was seated in the back seat of a police car. Plaintiff alleged excessive force. The officer claimed he was entitled to qualified immunity. Obviously, both sides had conflicting versions of the facts, but the district court denied summary judgment based on qualified immunity and the officer appealed. The Circuit affirmed, holding that there was evidence to support the Hennix's version of events. Some reminders worth noting: (1) officers should consider a person's ability to comply with commands prior to utilizing a Taser. This ability to comply may be the result of a medical condition, injury sustained while engaged with officers, or as the result of numerous Taser cycles; (2) in circumstances of mere passive resistance where there is no threat to the officers, a Taser is not an appropriate force option; and (3) In any use of force case, officers should consider (a) the seriousness of the crime at issue, (b) whether the suspect poses a threat to the officer or others, and (c) whether the suspect is actively resisting or attempting to evade arrest by flight.
Maracich v. Spears, 567 U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 12-25, filed 06/17/13). Lawyers who obtain, disclose, or use driver's license information solely to find clients to represent in an incipient lawsuit -- as opposed to evidence for use in existing or potential litigation -- are not protected under the under the litigation exception of the Driver's Privacy Protection Act (DPPA). The exception permits disclosure of personal information "for use in connection with any civil, criminal, administrative, or arbitral proceeding," including "investigation in anticipation of litigation." 18 U. S. C. §2721(b)(4). The Court held an attorney’s solicitation of clients is not a permissible purpose covered by the (b)(4) litigation exception. Excluding solicitation from the meaning of "in connection with" litigation draws support from (b)(4)’s examples of permissible litigation uses—"service of process, investigation in anticipation of litigation, and the execution or enforcement of judgments and orders"—which all involve an attorney’s conduct as an officer of the court, not a commercial actor.
Millbrook v. United States, 568 U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 11-10362, filed 03/27/13). Millbrook, a federal prisoner, sued the United States under the FTCA, alleging, inter alia, assault and battery by correctional officers. He alleged that he was forced to perform oral sex on a BOP correctional officer, while another officer held him in a choke hold and a third officer stood watch nearby. The District Court granted the Government summary judgment, and the Third Circuit affirmed, hewing to its precedent that the "law enforcement proviso," also known as the intentional tort exception (28 U. S. C. §2680(h)), applies and waives soverign immunity only to tortious conduct that occurs during the course of executing a search, seizing evidence, or making an arrest. Millbrook contended that the FTCA’s waiver is not so limited. The Supreme Court agreed and reversed, holding the law enforcement proviso extends to law enforcement officers’ acts or omissions that arise within the scope of their employment, regardless of whether the officers are engaged in investigative or law enforcement activity, or are executing a search, seizing evidence, or making an arrest. For some unknown reason, the Government had conceded that the correctional officer whose alleged conduct was at issue was acting within the scope of his employment.
Ellis v. City of Albuquerque, ___ F.Supp. ___ (D.N.M, decided 3/14/13, reported in Police Magazine 3/18/13). A Bernalillo County, N.M., jury awarded $10.3 million to the family of an Iraq War veteran who was shot and killed by an Albuquerque Police officer during a 2010 standoff. The verdict includes $2.7 million in punitive damages against Detective Brett Lampiris-Tremba and damages of $7.6 million against the city. Lampiris-Tremba's attorney told jurors the veteran detective made "the best decision he could" during a confrontation with Kenneth Ellis III in front of an convenience store. The detective fatally shot Ellis once in the neck while the veteran was holding a gun to his head. Deputy City Attorney Kathy Levy, who represented the detective, added that Lampiris-Tremba "accepts and understands the court's decision" that the shooting was unlawful. On Friday, Albuquerque Police Chief Ray Schultz announced his plans to retire from a department that has come under intense scrutiny following a federal civil rights probe.
Stricker v. Township of Cambridge, ___ F.3d ___ (6th Cir. No. 11-1998, filed 01/14/13). 911 medical emergency call creates "exigent circumstances" justifying warrantless entry and search of premises. In December 2008, Susan Stricker, an attorney and registered nurse, called 911 in Cambridge Township, Michigan. Her 20-year old son Andrew had overdosed on drugs, could not speak and was having difficulty moving. Andrew had previously been arrested on heroin charges, so Township police and officers from Lenawee County responded, along with EMS personnel. Andrew's parents initially allowed entry to their home, but once they realized that law enforcement personnel were among the group, they required all the responders to leave, locked their front door and claimed that their son was fine. As the evening progressed they became increasingly belligerent and refused to allow entry without a warrant. Police had observed Andrew in the house and determined that he was in a very precarious state. Ultimately, they broke down the front door. Officers conducted a sweep of the home and located Andrew hiding in the basement. He was taken to the hospital by EMS personnel, where he admitted to having used heroin and taken multiple Xanax capsules. His father was found trying to run down the basement stairs and his mother was located in a locked bedroom. Each was handcuffed and brought to the precinct house; they were initially charged with resisting arrest but the charges were dropped. The family brought suit under Section 1983 against the Township, the County, and various officers of the Township, the County and the State in their individual and official capacities, alleging Fourth Amendment violations including warrantless entry, unreasonable search, unreasonable seizure and arrest and excessive force. The Circuit affirmed summary judgment for the defendants. Defendants' warrantless entry into the home was constitutional due to "exigent circumstances." A substantial group of precedents including Brigham City v. Stuart , 547 U.S. 398 (2006) delineate that the officer's subjective intent is irrelevant if objective grounds exist to justify entry. A 911 call is an objective indication that emergency conditions exist within the home. A victim may need immediate assistance and medical personnel may need protection. Similarly, the sweep of the home did not violate the Fourth Amendment. Where the parents were acting aggressively and where a drug overdose was involved, protection of medical personnel and the need for more information about the drugs were justification for the officers' search of the premises. Plaintiffs' arguments that they had been arrested without probable cause were also unpersuasive. When they refused to cooperate with officers who had a legitimate need to enter the premises under exigent circumstances, and attempted to hide within the home to evade police, plaintiffs created probable cause for officers to conclude that they were obstructing lawful police activity. Finally, plaintiff's claims of excessive force failed. Pointing a gun or taser at persons who are actively trying to evade police capture is not proscribed. Handcuffing them, however "roughly," is not actionable unless some lasting injury results.
Swartz v. Insogna, ___ F.3d ___ (2d Cir. No. 11-2846-cv, filed 01/03/13). A passenger in a car saw an officer running radar, and to express his displeasure, flipped him the bird. The officer stopped the car and eventually arrested the passenger for disorderly conduct. The charge was ultimately dismissed on speedy trial grounds, then the passenger sued the officers for false arrest and malicious prosecution. The district court dismissed the suit, finding probable cause for the arrest. The Second Circuit reversed, finding the act of flipping the bird is neither reasonable suspicion for a stop, nor probable cause for an arrest. The Court held the law is clearly established, and the officers are not entitled to immunity. "Perhaps there is a police officer somewhere who would interpret an automobile passenger’s giving him the finger as a signal of distress, creating a suspicion that something occurring in the automobile warranted investigation. And perhaps that interpretation is what prompted Insogna to act, as he claims. But the nearly universal recognition that this gesture is an insult deprives such an interpretation of reasonableness. This ancient gesture of insult is not the basis for a reasonable suspicion of a traffic violation or impending criminal activity." See also Cook v. Board of County Commissioners, 966 F. Supp. 1049, 1052 (D. Kan. 1997) (denying motion to dismiss suit by automobile passenger arrested for disorderly conduct for giving the finger to a group of protesters, which included to police officer).
Fisher v. Decarvalho, ___ Kan. ___ (No. 104,644, filed 12/13/13), reversing Fisher v. DeCarvalho, 45 Kan. App. 2D1133, 1153, 260 P.3d1218 (2011). Fisher sued her doctor for malpractice on the last day of the statute of limitations and served him by mailing the summons and petition via unrestricted certified mail, sent to the doctor's business address. The doctor actually received the petition and filed an answer that asserted several affirmative defenses, including insufficiency of process, lack of personal jurisdiction, and a statute of limitations bar. The district court granted the doctor's motion to dismiss and Fisher appealed. Fisher argued she substantially complied with the service statute, and even if she did not, she was entitled to an additional 90 (or 120) days after the invalidity adjudication to effect valid service, as provided in K.S.A. 60-203(b). The Court disagreed with her on substantial compliance, but reversed and held that Fisher should have been afforded the opportunity, within the time limits set forth in K.S.A. 60-203(b), to attempt to effect a valid service of process after the district court's adjudication of invalidity. In doing so, the Court overrules Grimmett v. Burke, 21 Kan. App. 2d 638, 906 P.2d 156 (1995), rev. denied 259 Kan. 927 (1996).
State v. Cheeks, ___ Kan. ___, ___ P.3d ___ (No. 104858, filed 10/04/13). Jerome Cheeks was convicted in 1993 of second degree murder and sentenced to life in prison. He beat his wife to death with a hammer, then sodomized her with it. More than a decade later, he moved for DNA testing of about 30 evidentiary items. The district court denied his request, and Cheeks appealed, claiming that because K.S.A. 21-2512 allows such testing for first degree murder and rape, but does not allow it for second degree murder, it violates the Fourteenth Amendment's Equal Protection Clause. The Court, three justices dissenting, agreed, and reformed the statute to apply to second degree murder. See also State v. Denney, 278 Kan.643, 660, 101 P.3d 1257 (2004)(persons convicted of aggravated criminal sodomy also entitled to testing because it is indistingushible from rape).
U.S. v. Windsor, and Hollingsworth v. Perry, 567 U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 12-307, filed 06/26/13, and No. 12-144, filed 06/26/13). The Supreme Court agreed to review challenges to the Defense of Marriage Act (DOMA) and California's Proposition 8. In Windsor, 83-year-old plaintiff Edie Windsor left her house to her 44-year partner. Under federal tax law, a spouse who dies can leave assets, including the family home, to the other spouse without incurring estate taxes. DOMA Section 3, however, restricts the federal interpretation of marriage to heterosexual couples. Because the federal government did not recognize their marriage, the IRS taxed Windsor's inheritance from Spyer. Windsor sued to recover $353,053 in federal estate tax. The Second Circuit Court of Appeals applied heightened scrutiny to conclude that DOMA's classification of same-sex spouses was not substantially related to an important government interest. The court held that DOMA Section 3, which limits the federal definition of marriage to one man and one woman, violates equal protection. The United States Supreme Court, in a 5-4 decision, agreed. DOMA is unconstitutional as a deprivation of the equal liberty of persons that is protected by the Fifth Amendment.
Hollingsworth involves a Ninth Circuit opinion which struck down Proposition 8, a state constitutional amendment banning same sex marriage, holding that it lessened the status and human dignity of gays and lesbians in California, reclassified their relationships and families as inferior to those of opposite-sex couples. The United States Supreme Court, in a 5-4 decision, held that Petitioners did not have standing to appeal the Circuit's order.
State v. Srack, ___ Kan.App.2d ___, ___ P.3d ____ (No. 107660, filed 12/13/13). Srack sold herbal potpourri containing a synthetic cannabinoid known as JWH-081, and was convicted of distribution of a controlled substances analog. K.S.A.2010 Supp. 21-36a05(a)(4). He claimed the statute was too vague to be enforced. The Court of Appeals disagreed, turning to the illuminating case of Cardarella v. City of Overland Park, 228 Kan. 698, 620 P.2d 1122 (1980). K.S.A. 2010 Supp. 65-4105(d)(33) specifically identifies JWH-018 as a hallucinogenic substance prohibited by law. It is uncontroverted that Srack sold the potpourri laced with JWH-081 for human consumption. The controlling factual issue at trial was whether JWH-081 was "substantially similar" in structure and effect to JWH-018. The Court concluded that K.S.A. 2010 Supp. 21-36a01 (b)(1) does impart fair warning to a person of ordinary intelligence that the sale of potpourri intended for human consumption with a substantially similar chemical structure and effect on the central nervous system as a schedule I controlled substance is prohibited by law.
Rodewald v. Kan. Dept. of Revenue, ___ Kan. ___, ___ P.3d ___ (No. 105098, filed 03/22/13). A Potawatomi Tribal officer stopped the 18-year old Rodewald on the reservation and initiated a driver's license suspension when Rodewald tested at 0.046. The Supreme Court reversed, holding that KDOR had no statutory authority to suspend for acts that occurred on the reservation. The phrase "within this state" in K.S.A. 2007 Supp. 8-1001(a) and the phrase "in this state" in K.S.A. 8-1567a(a) are intended to mean locations in the state of Kansas that are within the jurisdiction of a Kansas law enforcement officer. Those phrases do not include the roadways—either public or private—within the Prairie Band Potawatomi reservation over which tribal police have assumed jurisdiction to enforce tribal law.
Pratt v. Kan. Dept. of Revenue, ___ Kan.App.2d ___, ___ P.3d ____ (No. 108204, filed 02/08/13). The arresting officer personally served Pratt with the DC-27 form but failed to check a box on the DC-27 form to indicate the manner of service, personal or mailed. Pratt alleged that deprived the Department of Revenue of jurisdiction to suspend his license. The Court of Appeals disagreed. While the DC-27 form includes a paragraph that allowed for the arresting officer to certify the manner of service, personal or mailed, there is no statutory requirement for such certification.
State v. Richmeier, ___ Kan.App.2d ___, ___ P.3d ____ (No. 109518, filed 11/22/13). Richmeier was drving drunk and got stopped. After a blood draw and upon returning to the jail, Richmeier asked to speak to a lawyer because he thought his "rights had been violated at that point." After posting his bond about 20 minutes later, Richmeir was released, but never called his attorney. The district court suppressed the blood-test results, finding the delay in providing Richmeier with access to a lawyer violated K.S.A. 2011 Supp. 8-1001(k)(9). The Court of Appeals reversed, finding the 15- to 20-minute delay did not deprive Richmeier of any of his rights in any meaningful way.
State v. Key, ___ Kan. ___, ___ P.3d ___ (No. 104651, filed 11/08/13). A defendant charged with felony driving under the influence (DUI) under K.S.A. 2007 Supp. 8-1567 may challenge before the district court the validity of a prior misdemeanor DUI used to classify the severity level of the current charge or to enhance the sentence following conviction on the current charge. However, if the defendant pleads guilty or no contest to the felony, the defendant will be limited on appeal to arguing the impropriety of the prior misdemeanor's effect as a sentencing enhancement. Under K.S.A. 22-3602(a), there is no appellate jurisdiction for a direct appeal of a felony conviction after a guilty or no contest plea. Key had two priors and challenged the State's reliance on one of his misdemeanor convictions, claiming his attorney in that case had filed a guilty plea without consulting him.
State v. Messer, ___ Kan.App.2d ___, ___ P.3d ____ (No. 108184, filed 08/23/13). K.S.A. 8-1004 just requires officers to give a "reasonable opportunity to have an additional test by a physician of the person's own choosing." Where an individual is released from custody by the OPPD about 45 minutes after taking the officer's requested test, they have a reasonable opportunity to obtain their own test.
Bixenman v. Kansas Dept. of Revenue, ___ Kan.App.2d ___, ___ P.3d ____ (No. 107661, filed 03/15/13, published 07/15/13). A Hays police officer stopped the 20-year old defendant for driving with one headlight and eventually arrested him for driving under the influence. Bixenman did pretty well on the field sobriety tests, but a PBT and subsequent breath test showed a bac between .02 and .08. Bixenman's license was suspended, but the district court set it aside, holding there was no probable cause to arrest Bixenman for DUI. The Court of Appeals reversed, finding probable cause to arrest for DUI is not a prerequisite for testing someone under 21 years of age. It reasoned that K.S.A. 8-1567a is a civil proceeding and imposes no criminal penalties, so a violation of K.S.A. 8-1567a is a separate and distinct offense from DUI as defined in K.S.A. 8-1567. All that is required for testing by K.S.A. 8-1001 and amendments thereto, is reasonable grounds to believe a person under 21 was operating or attempting to operate a vehicle while having alcohol. . . in such person ' s system; and one of the following conditions exists: "(A) The person has been arrested or otherwise taken into custody for any offense involving operation or attempted operation of a vehicle while under the influence of alcohol . . . , or for a violation of K.S.A. 8-1567a." Because K.S.A. 8-1567a is a civil offense with its own unique process, and not a criminal offense, an arrest is not a prerequisite to its enforcement. Bixenman was under the age of 21 and was driving with alcohol in his system. Bixenman had bloodshot eyes, alcohol on his breath, and admitted to consuming alcohol. The evidence was sufficient to support placing Bixenman in custody and reasonable grounds did exist to support the request for a breath test.
State v. Johnson, ___ Kan. ___, ___ P.3d ___ (No. 100864, filed 05/03/13, affirming 43 Kan.
App. 2d 815, 233 P.3d 290 (2010)). Johnson was convicted of misdemeanor driving under the influence and complained that his case should have been dismissed because the arresting deputy sheriff destroyed his field notes and failed to preserve the breath sample from the Intoxilyzer 5000, that, because the check lane was established in advance, the State was required to have a court - issued search warrant to conduct the Intoxilyzer 5000 breath test, the State failed to show that the Intoxilyzer 5000 complied with Kansas Department of Health and Environment (KDHE) regulations, and the court violated his constitutional right to confront witnesses by admitting KDHE certification evidence without the testimony of the person certifying those records. The Supreme Court did not buy any of it and affirmed. Test results lawfully obtained pursuant to K.S.A. 2007 Supp. 8 - 1001 are admissible in court as direct evidence of the defendant's blood - alcohol content in both driver's license suspension proceeding s and criminal prosecutions for DUI. See State v. Edgar, 45 Kan. App. 2d 340, 349, 246 P.3d 1013 (2011), aff'd in part and rev'd in part on other grounds, 296 Kan. ___, 294 P.3d 251 (February 1, 2013).
State v. Dennis, ___ Kan. ___, ___ P.3d ___ (No. 101052, filed 05/03/13). A Butler county officer stopped a known druggie who he suspected was driving on a suspended license. The druggie jumped out of the car, locked the doors and aggressively approached the officer. He was put in cuffs and admitted there was an open container in the car. The officer, pre-Gant, searched the car incident to the driver's arrest and found meth-making materials. The Court of Appeals refused to apply the good faith exception. The Supreme Court reversed. The search occurred prior to Arizona v. Gant, 556 U.S. 332, 129 S. Ct. 1710, 173 L. Ed. 2d. 485 (2009) and the outcome is contrary to State v. Daniel, 291 Kan. 490, 242 P.3d 1186 (2010), cert. denied 131 S.
Ct. 2114 (2011).
Missouri v. McNeely, 569 U.S. ___, 133 S. Ct. 1552, 185 L. Ed. 2d 696 (2013) (No. 11-1425, filed 4/17/13). Tyler McNeely was stopped for speeding about 2 a.m. by a Missouri highway patrol officer. When he stepped out of his car, the motorist was unsteady on his feet and failed the roadside sobriety tests. McNeely refused to provide a breath sample, so the officer drove him to a hospital where he ordered a lab technician to draw a blood sample from the suspect. McNeely, who had two prior convictions and was facing a felony charge, alleged the incriminating test results should be thrown out because the forced blood draw violated his rights. A trial judge agreed, and Missouri Supreme Court affirmed, ruling that police must obtain a search warrant before forcing a suspect to undergo a blood test. The United States Supreme Court affirmed, finding that DUI does not always justify the exigent circumstances exception to the warrant requirement. BAC evidence naturally dissipates in a gradual and relatively predictable manner, unlike situations where a suspect has control over easily disposable evidence. "[W]hile the natural dissipation of alcohol in the blood may support a finding of exigency in a specific case, as it did in Schmerber, it does not do so categorically. Whether a warrantless blood test of a drunk-driving suspect is reasonable must be determined case by case based on the totality of the circumstances." Slip opn. at 13.
State v. Sanchez, ___ Kan.App.2d ___, ___ P.3d ____ (No. 106828, filed 02/22/13). Sanchez, was riding in the passenger seat of her boyfriend's car. While arguing with her boyfriend, Sanchez grabbed the steering wheel, jerked it to the right, and caused the car to crash into a concrete barrier. She walked away from the accident, but a Highway Patrol trooper found her about a block away. Sanchez consented to the trooper's request for a blood test, which showed that her blood alcohol concentration was .21. The trooper also discovered that she had a suspended driver’s license. Sanchez was convicted of driving under the influence (DUI) and driving with a suspended license. She appeals her convictions, maintaining that she was not driving or operating the car when she grabbed the steering wheel. The Court of Appeals affirmed, finding that grabbing the steering wheel is "operating or attempting to operate" a vehicle as defined by K.S.A. 8-1416 & 8-1567.
State v. Edgar, ___ Kan. ___, ___ P.3d ___ (No. 103028, filed 02/01/13), affirming and reversing 45 Kan. App. 2d 340, 246 P.3d 1013 (2011). Edgar was stopped at a checklane, admitted to drinking and was asked to perform field sobriety tests and a PBT. He was eventually convicted of felony DUI (4th) and a DWS (3rd +) charge was dismissed. Edgar blew a 0.122 on the PBT and 0.110 on the breath test. He claims the PBT result should have been suppressed because he "passed" the field sobriety tests, so the officer had no reasonable suspicion to administer a PBT. He also claims the PBT was not voluntary because the officer told him he did not have a right to refuse. The Court of Appeals rejected these claims, holding that the admission of drinking, an odor of an alcoholic beverage and some clues on field sobriety tests give reasonable suspicion to administer a PBT. "In conducting a DUI investigation, a law enforcement officer is not required to reweigh reasonable suspicion after each field sobriety test. If reasonable suspicion exists at the outset of the investigation, an officer should be allowed to run the usual array of tests, within a reasonable number, to determine if the officer's reasonable suspicion leads to arrest or release of the person detained." The Supreme Court agreed, but it ultimately reversed on the PBT issue. The Court of Appeals had held that implied consent supplied by K.S.A. 8-1012 was sufficient for the PBT. The Supreme Court disagreed. It held the officer's statement that Edgar had no right to refuse the PBT made consent involuntary, and presumably the state did not meet its burden to show a valid warrantless search. Presumably concluding that there was no probable cause without the PBT result, the Court curiously held there was no valid alcohol related arrest, so the breath test should have been suppressed too. This case demonstrates the perils of: (a) defective PBT warnings; and (b) testimony about field sobriety tests being "pass" or "fail."
Smith v. Kansas Orthopaedic Center, P.A., ___ Kan.App.2d ___, ___ P.3d ____ (No. 109084 (filed 12/27/13). Smith accepted a position as a physical therapist with a specified salary and a "guaranteed bonus of $10,000." The parties disputed whether the promise of a bonus was merely for the first year of employment or a promise of a minimum bonus of $10,000 each year. The parties agreed that the relationship was that of at-will employment (employment which could be terminated at any time by the employee or the employer whether with or without notice). Smith worked her first year and was paid the specified bonus. The following year, the Center changed its bonus plan and provided Smith a copy. She understood the Center was changing its bonus policy and continued working for the Center until 2011 when she took a position elsewhere. Smith then sued, claiming the Center had guaranteed her a bonus of $10,000 for every year of her employment. The Court of Appeals rejected Smith's claim, noting that "the nature of at-will employment, i.e., that either party can end it at any time for any reason, has a corollary: either party can announce new terms to apply going forward." Further: "The power to terminate the employment relationship necessarily includes the power to change the terms of employment so long as it is done prospectively and the employee is notified of the changed terms." Because it was undisputed that (1) Smith was an at will employee, (2) the Center notified Smith of the changed compensation policy, and (3) the change was prospective only, it was held that Smith's decision to continue working after the change amounted to an acceptance of the new or changed compensation policy.
State v. Sampson, ___ Kan. ___, ___ P.3d ___ (No. 102535, filed 05/03/13). Cops cannot sit at counsel table during a trial. "[B]ecause of the likelihood of this practice enhancing the officer's credibility with the jury, we hold today that a trial court may not permit a testifying law enforcement officer to sit at the prosecution's table during a jury trial. Further, while we recognize that a trial court retains discretion over decisions regarding the sequestration of witnesses, including whether to permit a testifying law enforcement officer to remain in the courtroom despite a sequestration order, we hold the trial court abused its discretion in permitting a testifying law enforcement officer to remain in the courtroom under the circumstances of this case."
State v. Everett, ___ Kan. ___, ___ P.3d ___ (No. 100529, filed 03/29/13). Everett was being tried for manufacturing methamphetamine, and this wasn't his first rodeo. He was on community corrections for a prior manufacturing charge at the time of trial. Everett introduced evidence through a community corrections officer that he was tested several times during the period alleged in the complaint and always tested negative. The state then elicited testimony that he was on community corrections for a prior manufacturing charge. The Supreme Court held that presentation of evidence that Everett was on probation at the time the current crime was committed does not open the door to rebuttal evidence regarding a prior crime that may be admitted independent of K.S.A. 60-455, and could not be admitted to prove the defendant's propensity to commit the crime charged. Finding the evidence sufficiently prejudicial, it reversed Everett's conviction. "This additional evidence was like putting a neon sign over Everett that read, 'propensity to manufacture methamphetamine.'"
Smith v. United States, 567 U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 11-8976, filed 01/09/13). Petitioner Calvin Smith was involved in a criminal drug distribution organization and imprisoned for a related murder in 1994. In 2000, a grand jury brought indictments against him. Smith defended his two conspiracy charges on the grounds that the statute of limitations barred his conviction because he had withdrawn from the conspiracy more than five years ago. The trial court directed the jury that the burden of proof was on Smith as defendant to prove withdrawal by a preponderance of the evidence. Smith claims his participation in the conspiracy during the statutory period is a necessary element of his crime that the government must prove. Additionally, since withdrawal and participation are mutually exclusive, his withdrawal would negate an essential element of the government's case against him. The United States argued that withdrawal is an affirmative defense, and the burden of proof lies with the defendant. The Court agreed with the government and affirmed the conviction.
Kansas v. Cheever, 571 U.S. ___, 134 S.Ct. 596, 187 L.Ed.2d 519 (No. 12-609, filed 12/11/13), reversing Kansas v. Cheever, 295 Kan. 229, 284 P.3d 1007 (2012). Cheever killed Greenwood County (Kan.) Matt Samuels on Jan. 19, 2005. Sheriff Samuels had gone to a house near Hilltop to locate Scott Cheever on illegal drug charges. Cheever opened fire on the sheriff and two deputies, killing the sheriff. At trial, Cheever testified that he shot Sheriff Samuels, but argued that he was intoxicated at the time and couldn't form intent. He was convicted of capital murder in October 2007 and sentenced to death, after a psychiatrist's evaluation concluded he was not drunk at the time of the shooting. On Aug. 24, the Kansas Supreme Court overturned the conviction and death sentence, agreeing with Cheever claim that the medical testimony violated his protection against self-incrimination. The U.S. Supreme Court did not agree, and reversed the Kansas Supreme Court's decision vacating defendant's murder conviction and death sentence. That decision is is vacated and remanded, where: 1) Buchanan v. Kentucky established that a State may introduce the results of a court-ordered psychiatric examination for the limited purpose of rebutting a mental-status defense; 2) defendant raised a voluntary intoxication defense, offering expert testimony regarding his methamphetamine use; 3) the Kansas Supreme Court erred in concluding that the Buchanan rule did not apply; and 4) the Fifth Amendment does not prohibit the government from introducing evidence from a court ordered mental evaluation of a criminal defendant to rebut that defendant's presentation of expert testimony in support of a defense of voluntary intoxication.
Salinas v. Texas, 568 U.S. ___, 133 S. Ct. 2174, ___ L.Ed.2d ___ (No. 12-246, filed 06/17/13). Salinas was a suspect in a homicide, was questioned in a non-custodial setting and was not given his Miranda warnings. During the course of the interview he chose not to answer some potentially incriminating questions. Salinas did not testify at trial, but the court allowed the interview, and the lack of answers, into evidence to show consciousness of guilt. Defendant's murder conviction is affirmed, where: 1) without being placed in custody or receiving Miranda warnings, defendant voluntarily answered the questions of a police officer who was investigating a murder; 2) defendant remained silent when asked by the officer whether a ballistics test would show that the shell casings found at the crime scene would match petitioner's shotgun; and 3) at trial prosecutors argued that his reaction to the officer's question suggested that he was guilty. A plurality found that petitioner's Fifth Amendment claim fails because he did not expressly invoke the privilege against self-incrimination in response to the officer's question.
State v. Randolph, ___ Kan. ___, ___ P.3d ___ (No. 103918, filed 05/10/13). Randolph raped a 6-year old girl. After Sunflower House interviews, Randolph voluntarily went to the police station for an interview. After waiving his Miranda rights, he was interrogated in two segments. The first segment lasted 1 hour and 15 minutes and was not recorded ; the second segment lasted about 15 minutes and was audio - recorded. Randolph confessed, but then claimed his confession should have been suppressed because of his low intellect. The Court disagreed. It held that even though Randolph could not pronounce "coercion," while reading it on the waiver form, he had no trouble understanding the word once it was pronounced and its meaning was explained. The lack of a recording of a portion of the interrogation was not fatal, but "the better practice and the one we advise is for law enforcement officers to record the entire interview with a suspect when they are planning to record parts of the interview and recording equipment is available. Finally, even if the detective suggested that Randolph's DNA was found on the victim (which he didn't); use of deception is allowable during an interview. See State v. Harris, 279 Kan. 163, 170, 105 P.3d 1258 (2005); Frazier v. Cupp, 394 U.S. 731, 739, 89 S. Ct. 1420, 22 L. Ed. 2d 684 (1969) (the fact that officers misrepresented statements made by defendant's companion was insufficient to render the defendant's confession inadmissible); State v. Harris, 293 Kan. 798, 811, 269 P.3d 820 (2012)(confession may be voluntary even when officers lie to defendant during an interview); State v. Wakefield, 267 Kan. 116, 126 - 28, 977 P.2d 941 (1999) (deceptive interrogation techniques do not establish coercion but are one circumstance that must be viewed in conjunction with the others present to assess totality of the circumstances ).
State v. Lawson, ___ Kan. ___, ___ P.3d ___ (No. 103509, filed 04/05/13). Lawson was convicted of two counts of aggravated criminal sodomy of a child less than 14 when he allegedly had oral and anal sex with a young boy who resided with him. He was arrested and Michael Mogenson was appointed to represent him during the first appearance on March 10, 2008. The next day, Officer Bridges took Lawson from his jail cell to the Leavenworth Police Department. Bridges obtained a Miranda waiver, administered a polygraph and Lawson confessed. Lawson would later say that he thought Bridges was his court - appointed attorney, and Bridges said he was unaware that Lawson had an attorney. The Supreme Court held the waiver invalid. After the statutory right to counsel has attached, the defendant's uncounseled waiver of that right will not be valid unless it is made in writing and on the record in open court. A Miranda rights waiver form , addressing the defendant's Fifth Amendment right to remain silent, simply cannot be an adequate substitute for the waiver procedure we require of our learned trial judges. A Miranda waiver form, signed by the defendant during a police-initiated custodial interrogation, is not a valid waiver of a defendant's entitlement to the assistance of counsel under K.S.A. 22-4503.
State v. Garcia, ___ Kan. ___, ___ P.3d ___ (No. 104998, filed 04/26/13). Sgt. Volle violated the suspect's rights by using coercive tactics and making promises of leniency that convinced the court made Garcia's confession not a product of the his free will. Detectives withheld medical treatment for a gunshot wound in Garcia's foot, and promised Garcia that if he confessed to involvement in an aggravated robbery, he would only be charged with the robbery, not murder. Garcia was convicted of felony murder. They also used his girlfriend to get him to confess.
State v. Swindler, ___ Kan. ___, ___ P.3d ___ (No. 104580, filed 02/15/13). Swindler raped the 11 year old daughter of his girlfriend's aunt. He agreed to a polygraph examination six days later. After about 3 hours and 20 minutes, in an interview/polygraph with the KBI and a Sumner County Sheriff's Officer, Swindler said, "I can't give you the details. I don't know when I did it. I'm done. I want to go home. I'm done." After a few more questions, a two-hour interview resulted in Swindler making incriminating statements, signing two written confessions, and drawing a diagram of his hand to show how far his middle finger had penetrated the victim's vagina. Swindler alleged his confession should be suppressed due to the officers failure to honor his invocation of the right to remain silent. The Supreme Court agreed. If found the statements were not voluntary, stating, "In short, the investigators set the rules of engagement and then did not hesitate to break them as soon as they thought Swindler might slip away without telling them what they wanted to hear. Under the totality of these circumstances, the State cannot carry its burden to show that Swindler's resulting oral confession, written confessions, and drawing were given voluntarily under the Fifth Amendment."
State v. Vrabel, ___ Kan.App.2d ___, ___ P.3d ____ (No. 108390, filed 06/14/14/13). A confidential informant (CI) advised Corporal Washington of the Prairie Village Police Department (PVPD) that Vrabel was selling hash. Cpl.Washington had the CI arrange to purchase hash from Vrabel at a grocery store in Leawood. Cpl. Washington did not know where Vrabel was when he spoke to the CI on the phone. The grocery store was selected because it was located on a main road into Missouri, where Vrabel lived, and was one of law enforcement's traditional buy locations. PV coordinated the buy with Leawood Lieutenant Kevin Cauley, but the opinion isn't clear on whether Cauley requested PV's assistance. Vrabel sold hash to the CI at the grocery store in Leawood. The state charged Vrabel with distribution of marijuana and use of a communication facility to sell a controlled substance. Vrabel filed a motion to suppress, arguing that PVPD unlawfully exercised its jurisdiction by "set[ting] up and investigat[ing] a crime" in Leawood. The district court granted the motion. The State filed an interlocutory appeal. The Court of Appeals reversed, holding that Prairie Village police officers were authorized to conduct a controlled drug buy in Leawood under the "request for assistance" exception in K.S.A. 2012 Supp. 22-2401a(2)(b). It found there was "at least an implied agreement for drug -buy assistance between the PVPD and the LPD." Malone, J., concurred, disagreeing that the "request for assistance" exception applied, but finding no violation of Vrabel's constitutional rights.
State v. Acevedo, ___ Kan.App.2d ___, ___ P.3d ____ (No. 107631, filed 11/22/13). Acevedo is a thief who was banned from Wal Mart. After entering Wal Mart and stealing again he was convicted of aggravated burglary and appealed, claiming the aggravated burglary instruction was erroneous. The Court of Appeals disagreed, and held it was unnecessary to specifically modify the phrase "without authority" in PIK Crim. 3d 59.18 with the word "knowingly." The PIK instruction is legally sound as written. Atcheson, J., dissents because he thinks the instruction didn't require the State to prove that Defendant knew he lacked authority to enter the Wal-Mart. Without knowledge, defendants could be placed on secret "lack of authority" lists maintained by stores and successfully prosecuted for aggravated burglary without knowing their actions would violate that statute.
Bowman v. Monsanto Co., 567 U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 11-796, decided 05/13/13). Bowman purchased Roundup Ready soybean seed for his first crop of each growing season from a company associated with Monsanto and followed the terms of the licensing agreement. But to reduce costs for his riskier late-season planting, Bowman purchased soybeans intended for consumption from a grain elevator; planted them; treated the plants with glyphosate, killing all plants without the Roundup Ready trait; harvested the resulting soybeans that contained that trait; and saved some of these harvested seeds to use in his late-season planting the next season. Bowman did so for eight seasons. After discovering this practice, Monsanto sued Bowman for patent infringement. Bowman raised the defense of patent exhaustion, which gives the purchaser of a patented article, or any subsequent owner, the right to use or resell that article. The District Court rejected Bowman’s defense and ordered Bowman to pay Monsanto $84,456 in damages. The Federal Circuit affirmed, as did the Supreme Court. Patent exhaustion does not permit a farmer to reproduce patented seeds through planting and harvesting without the patent holder’s permission. By planting and harvesting Monsanto’s patented seeds, Bowman made additional copies of Monsanto’s patented invention, and his conduct thus falls outside the protections of patent exhaustion. Were this otherwise, Monsanto’s patent would provide scant benefit. After Monsanto sold its first seed, other seed companies could produce the patented seed to compete with Monsanto, and farmers would need to buy seed only once.
Dan’s City Used Cars v. Pelky, 568 U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 12-52, filed 05/13/13). Pelky alleged that Dan’s City Used Cars (Dan’s City), a towing company, took custody of his car after towing it from his landlord’s parking lot with out Pelkey’s knowledge, failed to notify him of its plan to auction the car, held an auction despite Pelkey’s notice that he wanted to reclaim the car, and eventually traded the car away without compensating Pelkey for the loss of his vehicle, all in violation of New Hampshire statutes. The district court granted summary judgment to Dan’s City, concluding that the FAAAA preempted Pelkey’s claims. The Federal Aviation Administration Authorization Act of 1994 (FAAAA) preempts state laws “related to a price, route, or service of any motor carrier . . . with respect to the transportation of property.” 49 U. S. C. §14501(c)(1). Exempted from preemption are state laws “relating to the price” of “vehicle transportation by a tow truck,” if towing occurs without prior consent of the vehicle owner. §14501(c)(2)(C). The New Hampshire Supreme Court reversed. It held the FAAAA’s preemption clause inapplicable because Pelkey’s claims related to Dan’s City’s conduct in disposing of his car post-storage, not to conduct concerning “the transportation of property,” or a towing company’s “service.” The Supreme Court affirmed. Pelkey’s state-law claims escape preemption because they are “related to” neither the “transportation of property” nor the “service” of a motor carrier. Although §14501(c)(1) otherwise tracks the ADA’s air-carrier preemption provision, the FAAAA formulation’s one conspicuous alteration—addition of the words “with respect to the transportation of property”—significantly limits the FAAAA’s preemptive scope. The Court holds that 49 U. S. C. §14501(c)(1) does not preempt state-law claims for damages stemming from the storage and disposal of a towed vehicle.
Rashid v. State, ___ Ga. ___, S12A1698, 2013 Ga. LEXIS 63 (1/22/13). The Supreme Court of Georgia upheld admission in court of a recorded conversation between the suspect and family members in the police interview room after a Miranda violation. Rashid, an immigrant from Pakistan, killed his daughter. Police interrogated him, but violated Miranda so his statements were inadmissible. After the interview, Rashid asked to speak with his family. The recording equipment in the interview room was still on when Rashid met with family members. Rashid, speaking in Urdu and Punjabi, repeatedly admitted to killing his daughter because she was defying him by pursuing a divorce, stating, inter alia, "I could not tolerate it, that my daughter confronted me in this way." Describing the act of the murder itself, he said, "There was no noise; those who want to get things done, do it silently." He further explained, that had his daughter survived his attack, "she was so filthy, she would have put me in jail." Those statements were admitted against him. Rashid alleged that their admission violated his right to privacy. The Court held there was no expectation of privacy because the statements were made while Rashid was in handcuffs in a police interrogation room. Even if he expected his statements to family members would be private, his expectation was unreasoanble. The Court also found this family conversation was not tainted by the prior police interrogation.
State v. Strong, 2013 ME 21, ___ N.E. ___ (No. Yor-13-55, filed 02/15/13). Maine’s top court has upheld the dismissal of 46 charges against a businessman accused of taping a prostitute’s sexual encounters, holding that the johns have no reasonable expectation of privacy under a state law banning recording in private places. Mark Strong was accused of videotaping people who paid to have sex with dance instructor Alexis Wright, who his was his business partner in a Zumba dance studio in Kennebunk. He still faces accusations that he promoted prostitution. “Places of prostitution and people who knowingly frequent them to engage a prostitute are not sanctioned by society,” the court said. “Accordingly, it is objectively unreasonable for a person who knowingly enters a place of prostitution for the purpose of engaging a prostitute to expect that society recognizes a right to be safe from surveillance while inside.”
People v. Goldsmith, ___ Cal. ___ (No. S201443, filed 6/5/14). The California Supreme Court held, in a unanimous published decision, that evidence generated by an automated traffic enforcement system (ATES, otherwise known as a "red light camera") was adequately authenticated by a police officer’s testimony and did not constitute hearsay. The Court concluded that the standard foundational showing normally used to authenticate photographs, videos and other writings is also sufficient to authenticate ATES-generated evidence. The Court specifically rejected the argument that the testimony of an ATES technician or other witness with special expertise in ATES computers was required to authenticate ATES evidence. A law enforcement investigator from the enforcing agency has sufficient knowledge to authenticate the evidence. Furthermore, since evidence generated by an ATES is not a "statement," the evidence does not constitute hearsay. Thus, use of such evidence does not implicate confrontation clause issues. The defendant in Goldsmith was cited for failing to stop at a red traffic light in the City of Inglewood. The evidence presented against her included several photographs — all imprinted with a bar code reflecting the date, time, location and how long the light was red at the time of the photo — and a 12-second video, all generated by an ATES. Only one witness testified at her trial: Dean Young, an investigator with the Inglewood Police Department assigned to the traffic division in red light camera enforcement. Young testified, among other things, that Inglewood’s ATES was operated by the Police Department but maintained by Redflex Traffic Systems, Inc., and that the computer-based digital camera system operates “independently” and records events that occur within an intersection after the light turns red. The trial court ultimately found the defendant was guilty of failing to stop at a red light, and the conviction was upheld on appeal. The Supreme Court granted review to consider whether the trial court properly admitted the ATES evidence over the defendant’s objections of inadequate foundation and hearsay.
Edward v. City of Ellisville, ___ Mo.App. ___ (No. ED99389, filed 11/05/13). Appellants received violation notices from Ellisville stating that they violated Ellisville’s red light camera ordinance because a motor vehicle owned by them was present in an intersection while the traffic light was emitting a steady red signal. Appellants challenged the validity of the Ordinance in an eight-count petition. The trial court dismissed their claims. The Court of Appeals reversed, holding the ordinance is void because it conflicts with state law. The ordinance makes vehicle owners liable for red light violations, regardless of whether the owner was driving at the time. State law prohibits red-light running only by drivers of vehicles and pedestrians, and requires assessment of points against violators. Because Ellisville's ordinance expands liability and makes red light tickets non-moving, it conflicts with state law, is void and unenforcable.
State v. Hall, ___ Kan. ___, ___ P.3d ___ (No. 102297, filed 06/28/13), affirming 45 Kan. App. 2d 290, 247 P.3d 1050 (2011). Hall stole from a veterinary clinic where she worked. She was convicted of theft and computer crime. Johnson County Judge Davis initially ordered Hall to pay about $10,000 in restitution. Defense counsel argued the amount was too much, and indicated he may challenge the amount at a later hearing. Judge Davis told him that any challenge should be filed within 30 days. After defendant filed her challenge, the judge ordered restitution of about $15,000. Hall contended the trial court did not have jurisdiction to increase the amount, and argued that retail value of the items stolen was an improper measure of the restitution amount since the clinic bought the items at wholesale prices. The Court of Appeals held that jurisdiction was properly reserved on the restitution amount, but agreed with Hall on the retail v. wholesale amounts. It said the assumed lost profit should not be included in the fair market value to be awarded as restitution. The Supreme Court focused on whether retail cost or wholesale cost is the appropriate measure of loss for determining restitution for stolen inventory, and concluded the answer should be: "It depends." It rejected a bright - line rule favoring either retail or wholesale cost and said the sentencing judge must evaluate the evidence, weigh all factors, and consider the facts and circumstances of each case to determine a value that will compensate the victim for the actual loss caused by the defendant's crime. It remanded for reconsideration of the restitution award.
United States v. Rodriguez, 739 F.3d 481 (2013). Albuquerque Police Officers were dispatched to a convenience store on a call that two employees were showing each other handguns. Officers entered the store and observed Defendant Daniel Rodriguez stocking shelves. He had a silver handgun tucked in his rear waistband that was visible when he bent over. Officers told Rodriguez "Let me see your hands, and let's step outside.” While stepping outside, an officer grabbed the handgun out of Rodriguez's waistband. It turned out that Rodriguez did not have a concealed carry permit and he was a convicted felon. And the handgun was stolen. Rodriguez claimed officers violated his Fourth Amendment rights. The Tenth Circuit disagreed. It held the detention justified at the outset because concealed firearms are presumptively illegal. It is up to a defendnt to show he fits within an exception. Additionally, the frisk was justified because officers certainly had reason to suspect that Rodriguez was armed and dangerous.
United States v. Willis, ___ F.3d ___ (10th Cir. No. 12-5166, unpublished, filed 10/4/13). A complainant called 911 and stated that there was a man with a gun outside her house in a disturbance. She stated that the man was a black male and was wearing a gray shirt. The complainant also provided the 911 operator with her name and address. Officers immediately responded to the call and within one block of the dispatch location, the officers observed two men walking down the road. One, later identified as Willis, was a black male wearing a gray shirt. The officers stopped Willis and immediately discovered a gun and the fact that he was a convicted felon. He was arrested for being a felon in possession of a firearm. Willis, a convicted felon, alleges the stop was bad and argued a lack of reasonable suspicion. The Circuit held that while the description was fairly generic, it was so close in time and proximity to the call and there were so few people out at this time, that the description was sufficient to establish reasonable suspicion. The court noted that Terry v. Ohio, was also based on fairly generic facts, stating, "it would seem odd to expect law enforcement not to follow up a citizen's complaint." But see United States v. Jones, 998 F.2d 883 (10th Cir. 1993)(tip was two men in a black Mercedes, but black Mercedes officers stopped was quite a ways away and caller's information did not quite match up).
Clark v. Indiana, (No. 20S05-1301-CR-10, filed 09/17/13). Officers were called to investigate men possibly living in a storage unit. An officer approached the men and immediately told them to "have a seat." He later searched the men (with consent) and one of their cars after smelling the odor of marijuana and discovered part of a mobile methamphetamine lab. The court held the consent came during an illegal detention. Once the officer required the men to sit on the ground so he could respond more quickly to their movements — once he employed his authority to control and restrict their freedom to depart — the encounter moved past what would be considered "consensual." No reasonable person would have believed they were free to simply get up and walk away under those circumstances. Because they were detained without reasonable suspicion, it was an illegal detention. Civil standbys are not a criminal investigation. It would be the same as a landlord asking the police to accompany him as he asked a tenant for back payment on rent, or sought to enforce some common provision of a rental agreement like not having a grill on the balcony. Simply because the police are willing and available to be present does not mandate turning an otherwise civil matter into a criminal investigation.
State v. Phillips, ___ Kan.App.2d ___, ___ P.3d ____ (No. 108949, filed 12/13/13). Lenexa police made contact with two suspicious characters in a parking lot of a motel. After consensual pat-downs and a consensual car search failed to turn up anything illegal, officers obtained consent to look around the mens' motel room. They found methamphetamine and arrested Phillips. He alleged he was illegally detained, therefore his consent was invalid. The Court of Appeals agreed, holding the officer did not have reasonable suspicion to detain, and the length of time and number of officers present (18 minutes and 3, respectively), would indicate to a reasonable person they were not free to leave.
State v. Hensley, ___ Kan. ___, ___ P.3d ___ (No. 102055, filed 12/06/13). Hensley's jilted ex-girlfriend police and told them Hensley had a large amount of marijuana in his freezer (she saw the day before) and she believed Hensley had a handgun. Based on this and other information, officers obtained a warrant and found 200 grams of marijuana in Hensley's freezer, a folding lock blade knife, a baggie of marijuana, a pipe, rolling papers, and a marijuana roach with blunts. Hensley alleged the warrant should not have issued because the information provided in the affidavit tip was stale and/or not worthy of belief, thus his convictions for possession of marijuana, possession of marijuana with no tax stamp affixed, and possession of drug paraphernalia should be reversed. The Court disagreed, holding that while some of the historical information was stale, there was sufficient probable cause supported by non-stale information with an indicia of reliability. However, conviction of both possession of marijuana and possession of marijuana with no tax stamp are multiplicitous and violated K.S.A. 21-3107(2)(b)'s prohibition against a person being convicted of both a greater and lesser crime. The Court reversed Hensley's conviction and sentence for possession of marijuana.
United States v. Ponce, ___ F.3d ___ (10th Cir. No. 12-5032, filed 10/30/13). The Tenth Circuit has ruled that, even without probable cause, the good faith exception applies to a search warrant. Julio Ponce appealed the Oklahoma district court's denial of his motion to suppress evidence obtained pursuant to a search warrant that Ponce alleges was issued without valid probable cause. A Tulsa police officer submitted an affidavit for a search warrant to search Ponce's residence in 2011. After the officer received information from an informant that Ponce was selling meth from his home, the officer verified this information by conducting his own surveillance and walking his drug dog, Buster, along Ponce's garage door. Buster alerted for the odor of narcotics. To verify the alert, officers walked Buster along other garage doors in the neighborhood, but received no more alerts. After officers submitted the affidavit, the magistrate issued a search warrant which led to the discovery of large quantities of cash, meth, firearms, and other illegal items in Ponce's residence. The Circuit applied the good faith exception from Leon. The officer had an objectively reasonable belief that the dog's drug sniff was permissible and the affidavit was sufficient. The officer reasonably used a qualified dog, led the dog to the door where he then "provided sufficient corroboration of the veracity and reliability of his informants justifying the issuance of the search warrant." Even if the warrant was defective, the officer was entitled to rely on the warrant issued by the magistrate. Noting that later Supreme Court precedent in Florida v. Jardines, 133 S. Ct. 1409 (2013), suggests the dog sniff may have been illegal, the Court held that at the time the search occurred the officer had a good faith basis for believing it was legal.
State v. Miller, ___ Kan.App.2d ___, ___ P.3d ____ (No. 109354, filed 09/13/13). A trooper stopped Miller because he thought she drove onto I-35 after it had been closed due to an accident. In actuality, the officers that had been blocking the entrance ramp had been temporarily deployed elsewhere. Unfortunately for Miller, she was intoxicated, which the trooper noticed after stopping her. Judge Cameron held the trooper's mistaken belief the highway was closed was an insufficient reason to stop her and suppressed all the DUI evidence. The Court of Appeals reversed. It agreed with the state's argument that an officer's action isn't invalidated for a mistake of fact so long as the officer had a reasonable belief that facts existed that would have justified the traffic stop. Based upon what the trooper knew at the time, he believed that Miller had violated K.S.A. 8-1503 by refusing to comply with an officer's traffic - control directives. "We should point out, however, that an officer can make one type of mistake that won't provide reasonable suspicion, and that's a mistake of law. Officers are charged with knowledge of the law, and they don't have reasonable suspicion to stop someone when they mistakenly believe that there' s a law that a person's actions would have violated when, in fact, such a law doesn't exist." The court declined Miller's invitation to apply the collective - knowledge doctrine.
State v. Jefferson, ___ Kan. ___, ___ P.3d ___ (No. 98742, filed 09/06/13). Jazwane Jefferson and others shot and killed Deborah Jackson in a KCK drive-by shooting. According to Jefferson, on the day of the shooting, he and his associates armed themselves with guns before getting into a white van and shooting up Jackson's house. It was the last in a series of shootings that day. About a month after the shooting, detectives Lawson and York developed Jefferson as a suspect and went to his apartment complex to chat with him. When they arrived at the complex, they observed Jefferson's car parked in the parking lot with the engine running, and they saw a person they believed to be Jefferson walking towards the car. After issuing a greeting, Jefferson fled on foot. After an unsuccessful foot chase, Lawson and York returned to the apartment complex parking lot about 15 minutes later and found that Jefferson's car engine had been turned off and the keys had been removed. They impounded the car. York placed a card on Jefferson's apartment door with the following handwritten message: "Jazwane, if you want your car back, please give me a call. We can talk, York." The Court held there was no probable cause to seize the car. Although State v. Sanchez - Loredo, 294 Kan. 50, Syl. ¶ 4, 272 P.3d 34 (2012) allows warrantless seizure, there must be a 'fair probability' that the vehicle contains contraband or evidence [of a crime]." 294 Kan. at 55. If law enforcement officers have probable cause to search a vehicle at the scene, they also have probable cause to seize the vehicle and search it at a later, more convenient time. See 294 Kan. at 56 - 57 (agreeing with Chambers v. Maroney, 399 U.S. 42 , 52, 90 S. Ct. 1975, 26 L. Ed. 2d 419 [1970] , that if probable cause exists there is no significant distinction "'between on the one hand seizing and holding a car before presenting the probable cause issue to a magistrate and on the other hand carrying out an immediate search without a warrant '"); State v. Taylor, 217 Kan. 706, 710 - 11, 538 P.2d 1375 (1975)("I f the police had probable cause to search the truck at the time it was discovered and defendant arrested, they had probable cause to impound it and search it at a later, more convenient time "). Summing up the lack of connection between Jeffrson's car and the shooting,, the court said, "there is simply no evidence in the record linking the shooting to Jefferson's vehicle." The Court also held the State failed to establish under the totality of the circumstances that Jefferson's statements were sufficiently attenuated from the preceding illegal seizure, and accordingly reversed and remanded with directions to grant Jefferson's Motion to Suppress his confession.
State v. Bierer, ___ Kan.App.2d ___, ___ P.3d ____ (No. 109330, filed 09/06/13). A postal inspector located a suspicious package and called Johnson County deputies, who conducted a dog sniff and received an alert. They obtained a search warrant for the residence the package was to be shipped to, then put it on the front porch and waited for someone to take it inside. Instead, Bierer drove up, grabbed the package and put it in his car and drove away. Deputies stopped the car, searched the package and found marijuana. Bierer alleges the search was illegal. The Court of Appeals disagreed, holding the stop was based on probable cause, and the search of the package was a valid search of a container under the automobile exception, California v. Acevedo, 500 U.S. 565 (1991).
Floyd v. City of New York, ___ F.Supp.2d ___ (U.S.D.C. S.D.N.Y., No. 08-Civ.-1034(SAS), filed 8/12/13). A Manhattan federal judge ruled that New York police violated the Constitution when they targeted "the right people" with stop-and-frisk tactics. Minorities were disproportionately targeted under policies that encouraged more police stops to combat crime, "A police department may not target a racially defined group for stops in general—that is, for stops based on suspicions of general criminal wrongdoing—simply because members of that group appear frequently in the police department’s suspect data." The stop and frisk policy violated the the Fourth Amendment’s ban on unreasonable searches and the 14th Amendment’s equal protection clause. As a remedy, the judge appointed lawyer Peter Zimroth of Arnold & Porter to monitor police conduct. The judge reviewed statistics on 4.4 million police stops made between January 2004 and June 2012, and said a forms database indicated at least 200,000 were made without reasonable suspicion. Officers were pressured to increase their stops, and the city did nothing when notified that the stops were being made in a racially skewed manner, she wrote. Supervisors routinely reviewed the productivity of officers, but did not review the facts cited to justify such stops to determine whether they were legally sufficient. Scheindlin also noted an unwritten policy for police to target "the right people" for stops. " According to Scheindlin’s opinion, 52 percent of the 4.4 million police stops were followed by a frisk for weapons. A weapon was found after 1.5 percent of those frisks. In 52 percent of those 4.4 million stops, the person stopped was black; in 31 percent the person was Hispanic; and in 10 percent the person was white. Weapons were seized in 1 percent of the stops of blacks; 1.1 percent of the stops of Hispanics; and 1.4 percent of the stops of whites. Contraband other than weapons was seized in 1.8 percent of the stops of blacks; 1.7 percent of the stops of Hispanics; and 2.3 percent of the stops of whites. Scheindlin illustrated poor police training by citing differing testimony on what constituted “furtive movements” used to justify stops. One officer said it could mean changing direction, walking a certain way, being fidgety, stuttering, looking back and forth, adjusting a hip or belt, grabbing at a pocket, acting a little suspicious, going in and out of a location, and moving into and out of a car too quickly. A nother said it could mean hanging out in front of a building or sitting on benches and then making a quick movement, such as bending down or going inside the lobby, or suddenly becoming very nervous and very aware.
Prologue: The judge also ruled that NYPD officers in the five precincts with the most stop-and-frisks must begin wearing on-officer video systems to prevent inappropriate behavior. Mayor Bloomberg has vowed to appeal.
UPDATE: Judge Scheindlin's opinion has been stayed pending appeal, and the 2nd Circuit held that Judge Scheindlin violated judicial canons 2 and 3, so it reassigned the cases upon remand.
Another Update: 08/07/14 - According to PoliceMag.com, the new Mayor has dismissed the appeals.
Another Update: 11/04/14 - The 2d Circuit denied the Union's attempt to intervene. This appearsa to end the matter.
State v. Althaus, ___ Kan.App.2d ___, ___ P.3d ____ (No. 106813, filed 08/02/13). Judge Achison, writing for the majority, reverses a district court decision denying a motion to suppress for lack of probable cause in the search warrant affidavit. Reno county police were investigating three people for methamphetamine distribution. The affidavit basically said they observed Althaus at one of the target's residence, then go to a storage unit, where he stayed for about one minute. There was no clear explanation how officers knew that Althaus was involved in methamphetamine districution, or why police thought there would be drugs in his house. Despite the lack of facts and circumstances, a magistrate issued a warrant. The Court of Appeals refused to apply the Leon good faith exception. The application for the warrant was without any factual basis for the search of Althaus' home, a defect a reasonable law enforcement officer would have immediately recognized.
United States v. Mongold, ___ F.3d ___ (10th Cir. Nos. 12-7073 & 7075, filed 07/10/13, upublished), 2013 U.S. App. LEXIS 13943. ATF agents entered Ms. Moore's residence without consent after they smelled the odor of burnt marijuana while on a knock & talk. Mongold, a convicted felon (and resident) answered the door. Officers asked for Ms. Moore and Mongold said he would get her. Officers followed him in and saw ammunition in the residence. An officer directed the home's four residents-Ms. Moore, Mr. Mongold, and Ms. Moore's two adult children-onto the front porch. The officer notified the residents that he had smelled marijuana and had seen ammunition in the home. He then informed them of their Miranda rights and asked them each to sign a form consenting to a search of the home. All four occupants consented. During the search, officers found a small amount of marijuana, drug paraphernalia, bags containing white powder, ammunition, a shotgun, and a revolver. Moore and Mongold argued the evidence should be suppressed due to the illegal entry and the coerced consent. The Tenth Circuit agreed. The Circuit held that the likely presence of marijuana supplied probable cause, but held that due to the misdemeanor nature of the crime, it would not supply exigent circumstances excusing a warrantless entry. Additionally, officer safety reasons would not supply exigent circumstances because the government presented no evidence that the officers had "reasonable grounds to believe that there [was] immediate need to protect their lives or others." Turning to whether the consents were valid, the Circuit held the district court did not make factual findings concerning a possible "break" in the causal connection, and remanded the case to district court for a ruling on this issue.
United States v. Bausby, ___ F.3d ___ (8th Cir. No. 12–3212, filed 07/11/13). A motorcycle in a Kansas City, MO front yard displaying a "For Sale" sign was not within the curtilage. A concerned citizen thought he spotted a stolen motorcycle in defendant chain-link fenced front yard. Police entered the yard and subsequently obtained a search warrant for the house. While searching the house they found a 12-gauge shotgun, which was bad for Bausby, a convicted felon. Two judges decided that the yard was not curtilage because the open display of the motorcycle with the "for sale" sign invited the public to enter the yard and knock on the front door. "An implicit license typically permits the visitor to approach the home by the front path, knock promptly, wait briefly to be received, and then (absent invitation to linger longer) leave." One judge believed the yard was curtilage due to the location, fence, telephone number, and a “Beware of Dog” sign on the fence. Still, all three judges decided that the police could pass through the unlocked, unchained gate and enter the yard to knock on the front door and inquire about the motorcycle. The trend is to allow "plain view," "knock and talk," and "implied invitee entry” warrantless entries into the curtilage.
State v. Brewer, ___ Kan.App.2d ___, ___ P.3d ____ (No. 107829, filed 07/12/13). A police officer noticed two potential traffic offenses (excessive window tint and altered tag) related to the vehicle that Brewer was driving. The officer followed the vehicle for a few minutes until it stopped in a driveway. Brewer, who had exited and locked the car, appeared to not want anything to do with the car, had to be convinced to return to it to obtain his insurance information. The officer made contact with Brewer and ultimately conducted an exterior air sniff of the vehicle using a K - 9 dog that was riding in the officer's vehicle . The K - 9 exhibited behavior changes indicating an alert to the odor of drugs. During a subsequent search of the interior of the vehicle, the officer found substances that appeared to be marijuana and methamphetamine. Brewer claimed the evidence should have been suppressed because the officer lacked reasonable suspicion to conduct a traffic stop and lacked probable cause to conduct a warrantless vehicle search. He claimed the State failed to provide documentation that the K - 9 was certified at the time of t he exterior air sniff and that the K - 9's training records and reports indicated a much higher rate of false positives than the 10 percent estimate given by the handler at the hearing on the motion to suppress. The Court of Appeals affirmed denial of Brewer's motion to suppress, finding the K - 9 and its handler underwent regular monthly training together during the relevant time frame and documentation showed that they had completed a training session just 9 days before the exterior air sniff. The evidence of the K - 9's certification and regular training provided the necessary foundation to establish that the dog's "alert" provided probable cause to search the vehicle.
Maryland v. King, 567 U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 12-207, filed 06/03/13). Police took a DNA sample from Alonzo Jay King Jr. after his 2009 arrest on assault charges. King was later convicted in an unsolved rape case from 2003. Maryland's law, which went into effect in 2009, expanded the collection of DNA samples from those convicted of crimes to those who have been arrested for violent crime or burglary, even if they were not found guilty. The Maryland Court of Appeals overturned King's rape conviction in April, ruling that the collection of DNA evidence violated his Fourth Amendment rights and constituted a warrantless seizure. The U.S. Supreme Court reversed, holding that DNA collection is not unreasonable because it is done for identification purposes.
United States v. Rigmaiden, ___ F.Supp.2d ___ (No. ____ USDC AZ 03/13/2013). Rigmaiden operated a number of scams that included identity theft and filing for income tax refunds he wasn’t entitled to. Nearly all of his activities were conducted online, using a laptop and a wireless “aircard” that sent and received data over the cellular network. He was quite successful at this, filing more than 1,200 fraudulent tax returns and collecting more than $3 million in tax refunds. An IRS eFile provider notified the IRS that an unusually large number of returns had been filed through its website by a single person. IRS agents researched the IP addresses used by this filer and tied it to an aircard subscribed to Verizon and purchased by Travis Rupard in San Jose (Calif.). Rupard turned out to be a false name associated with a non-existent address and a California driver’s license number assigned to a woman. Rigmaiden was caught, in part, through the use of a StingRay device. The StingRay and some related products with similarly icthyological names like KingFish and AmberJack are produced by Harris Wireless Products Group of Melbourne, Florida. A StingRay mimics a cell phone tower and pings cell phones within its range for a signal. By measuring the signal strength, the operator can determine the approximate location of the cell phone. All of this happens without the knowledge of the cell phone’s owner or the cellular network the phone uses. The device is reportedly about the size of a shoebox and is easily transported to wherever it’s needed. It’s not used for monitoring the conversations or text messages sent to or from the phone. Rigmaiden sought to suppress the information supplied by the device on the grounds that the search warrant requested by the FBI was not specific, failing to properly describe what information was sought and the way the FBI intended to get it. Rigmaiden said the government failed in their "duty of candor" to fully inform the judge issuing the warrant of what they intended to do. The trial judge denied that motion. The lesson here, if there is one, is for cops to be forthcoming when seeking search warrants using technology that may be unfamiliar to the issuing judge.
State v. Ewertz, ___ Kan.App.2d ___, ___ P.3d ____ (No. 107297, filed 06/07/13). An officer stopped Ewertz's car for no tail lights and failure to maintain a single lane. After the stop, the officer noticed the usual indicators of impaired driving. After conducting field sobriety testing, he arrested her, secured her in his patrol car, then searched her car incident to arrest, suspecting that it may contain open containers. He found meth instead. Ewertz claimed the search was illegal. The Court of Appeals disagreed, finding it was a valid search incident to arrest, or in the alternative, a valid plain view exception (a meth pipe was clearly visible in a pink makeup bag on the passenger floorboard when the officer went to retrieve Ewertz's purse.)
Carroll v. County of Monroe, ___ F.3d ___, 2013 U.S. App. LEXIS 4940 (2d Cir. No. 12-975, filed 03/12/13). Narcotics officers executed a "no-knock" warrant for the plaintiff's home. The first officer in saw a dog growling, barking, and quickly and aggressively approaching him. Once the dog had advanced to within a foot of him, the officer fired one shot and killed the dog.
Plaintiff sued, alleging the force used against the dog was excessive. He claimed the agency failed to train its officers regarding non-lethal means to secure dogs and to formulate a plan to restrain the plaintiff's dog using non-lethal means. The 2d Circuit noted that unreasonable killing of a companion animal constitutes an unconstitutional "seizure" of personal property under the Fourth Amendment, but held the shooting in this case was reasonable under the circumstances. The court found that even if there was a contingency plan to deal with the dog with less-lethal means, the deputy may have still needed to shoot the dog under the facts of this case. However, the Court did offer a word of advice to law enforcement:
As a cautionary note, however, we do not mean to endorse the defendants' apparent position that the failure to plan for the known presence of a dog is always acceptable when the police are executing a no-knock warrant. We merely decide that under the particular facts of this case, especially given the high burden that a party must meet to successfully challenge a jury verdict, the jury was not unreasonable to conclude that the plaintiff did not meet her burden of proof. There may very well be circumstances under which a plaintiff could prove that lack of an adequate plan rendered the shooting of his or her dog unreasonable even during execution of a no-knock warrant, and we urge the defendants to consider whether more comprehensive training and planning would better serve the public, as well as its officers, in the future.
In a footnote, the court also noted that the particular deputy that shot the dog in this case had shot two other dogs while executing search warrants, and stated that this set of facts indicates that officers encounter these situations more frequently than they would probably prefer and that planning and training,-while not always constitutionally required, "may be advisable to avoid future tragedies and future litigation."
State v. Campbell, ___ Kan. ___, ___ P.3d ___ (No. 101860, filed 05/03/13). An officer investigating a noise complaint regarding a car located the car in an apartment complex parking lot. He ran the tag and it returned to an apartment resident. The officer went to the apartment and just in front of it, smelled burning marijuana coming from an open window. He covered the peephole and bladed his body away from the door so he could force it open if necessary. The resident opened the door with a gun in his hand, then tried to slam the door. The officer forced entry and Campbell was convicted of drug charges. The Supreme Court held the warrantless and forced entry into his apartment was not justified by exigent circumstances; thus the entry and subsequent seizure of evidence in plain view violated Campbell's Fourth Amendment rights. The court held this was a "'police - created exigency.'" Police may not rely on an exigent circumstance, such as the destruction of evidence, when police conduct "'created'" or "'manufactured'" that exigency. The officer did more than "any private citizen might do." See Kentucky v. King, 563 U.S. __, 131 S. Ct. 1849, 1862, 179 L. Ed. 2d 865 (2011). Rather than simply knock on the door and wait for an answer, the officer affirmatively chose to conceal his Identify by covering the peephole and positioning himself to block the occupant's ability to determine who was standing at the door — essentially forcing the occupant of the apartment to make an uninformed decision. "No customary invitation" permits approaching someone's door in this manner. Florida v. Jardines, No. 11-564, 2013 WL 1196577, at *4, *5, 569 U.S. __, __ S. Ct. __, __ L. Ed. 2d __ (March 26, 2013). "Additionally, as Campbell points out, the Kansas Legislature has clearly authorized citizens to use force in defense of their homes. See, e.g., K.S.A. 2012 Supp. 21- 5223(a) (creating a defense to criminal charges when a person justifiably uses appropriate force to protect the person's dwelling). Similarly, our state constitution now provides: "A person has the right to keep and bear arms for the defense of self, family, home, and state." Kan. Const. Bill of Rights § 4. Given this history, we simply cannot accept the State's position that an officer can rely on evidence seized after an officer conducting a voluntary "knock and talk" breaks down the door of a residence after an occupant appears at the door of a home carrying a gun, when the officer' s intrusion into the home has been preceded by the officer (1) positioning himself against the door of the residence so as not to be seen by the occupants; and (2) covering the door's peephole to prevent the occupant from discerning the officer's identity in an affirmative attempt to entice the occupants to open the door." In dissent, Biles stated that covering the peephole was an acceptable ruse, and, "did not violate the Fourth Amendment. The majority cites no case directly on point to support its conclusion. I would affirm the district court and the Court of Appeals. The majority has set a precedent for the court that it will find difficult to live with in future Fourth Amendment cases." ___ Kan. at ___, Biles, J., dissenting.
State v. Beltran, 48 Kan.App.2d 857, 300 P.3d 92 (2013)(No. 106842, filed 05/03/13). Beltran was present when a search warrant was served at a residence. He was a stranger to the property, wasn't expected to be there, and was not named in the warrant. Beltran began walking away from officers and refused to take his hand out of his pocket. Beltran did not comply and continued walking toward the kitchen. The officer grabbed Beltran's hands and then stuck his own hand in Beltran's pocket and found money and drugs. The Court of Appeals affirmed denial of Beltran's suppression motion, but declined to do so based probable cause to search Beltran or inevitable discovery. Devenpeck v. Alford, 543 U.S. 146, 125 S. Ct. 588, 160 L.Ed. 2d 537 (2004), leads to the paradoxical conclusion that although the officer expressly disclaimed any intent to arrest Beltran before the search, an objectively reasonable officer would have had probable cause to arrest Beltran for obstruction, and the search would have been constitutionally acceptable as an incident of that justifiable, if theoretical, arrest. Because search and seizure analysis is driven by objective reasonableness rather than subjective intent, as Devenpeck makes clear, the search comported with the Fourth Amendment to the United States Constitution, so the district court reached the right result.
United States v. Barajas, ___ F.3d ___ (10th Cir. No. 12-3003, filed 03-04-13). Barajas was convicted of several drug crimes and challenged the denial of his motion to suppress all evidence obtained from the wiretap surveillance and GPS pinging of certain cell phones. DEA agents obtained wiretap warrants and pinged cell phones identified during the investigation of a drug-running conspiracy. Barajas's cell phone kept coming up in the investigation, and agents located him in San Diego through GPS pings of his phone. Barajas alleged the pings were illegal because: (1) pinging is a search under the Fourth Amendment; (2) the wiretap affidavits did not provide probable cause for pinging because they failed to request GPS data; and (3) the good-faith exception to the exclusionary rule does not apply. The Circuit affirmed denial of the suppression motion. It assumed without deciding that pinging is a search. It dodged the probable cause issue because any deficiency in probable cause is cured by the good-faith exception, which it found applied based on issuance of warrants allowing wiretaps. Even though the affidavits did not request GPS ping data, the affidavits "establish . . a minimally sufficient nexus between the illegal activity and the place to be searched." Barajas also argued the agents should have known the orders illegally allowed the obtaining of GPS ping data. The Circuit disagreed, noting the law on on electronic surveillance, "is very much unsettled."
United States v. Black, 707 F.3d 531 (4th Cir. No. 11-5084, filed 02/26/13). Charlotte-Mecklenburg police patrolling a high-crime area saw a car at a gas station, and focused on it because during their three-minute observation, the driver did not get out, go in the station or pump any gas. They ran the tag, which came back normal. They followed the car to a parking lot, and saw the driver get out and join five other men standing around. After calling for back up, officers made voluntary contact with the group. One of the group was openly carrying a firearm. One officer testified that he followed the "rule of two," which states that if the police find one firearm, there will "most likely" be another firearm in the immediate area. Another officer referred to this as the "one-plus rule." Officers began collecting IDs and frisking some of the men. Black initially voluntarily offered ID, then "became fidgety," looking right and left as if for an avenue of escape. Black then stood up, said he was going home, and began walking towards nearby apartments. An officer stopped him, saying that he was not free to leave and he should sit down. In response, Black said "I can’t go home?" or "I can’t leave?" and continued walking away. Officers attempted to physically stop him, and while reducing him to custody found a gun. Black was a convicted felon. He moved to suppress the firearm, alleging the stop was not based on reasonable suspicion. The Fourth Circuit agreed. The Circuit found that Black was seized long before he was told not to leave, and at the time of the seizure, the only articulable facts were that one of the men was openly carrying a firearm, which is not a crime in North Carolina. The presence of up to seven police officers and multiple police cruisers constituted a "collective show of authority by the uniformed police," and during the encounter, two officers were performing perimiter duty. The officers had already seized the open carrier's firearm and stored it in a police vehicle, then began frisking the men one-by-one, which would indicate to a reasonable person they were not free to leave. The Court rejected the government's contention that possible felon in a possession situations entitled the police to check. "[W]here a state permits individuals to openly carry firearms, the exercise of this right, without more, cannot justify an investigatory detention. Permitting such a justification would eviscerate Fourth Amendment protections for lawfully armed individuals in those states." The Court cited a 10th Circuit case, United States v. King, 990 F.2d 1552, 1559 (10th Cir. 1993) for this premise. Rejecting the "rule of two," and "one-plus rule," the Court said it would be "abdicat[ing] our judicial role if we took law enforcement-created rules as sufficient to establish reasonable suspicion. Although the opinion did not specify the races of all the individuals involved, the Court seemed to indicate that race played a part in this case. In its conclusion, the Court stated:
The facts of this case give us cause to pause and ponder the slow systematic erosion of Fourth Amendment protections for a certain demographic. In the words of Dr. Martin Luther King, Jr., we are reminded that 'we are tied together in a single garment of destiny, caught in an inescapable network of mutuality,' that our individual freedom is inextricably bound to the freedom of others. Thus, we must ensure that the Fourth Amendment rights of all individuals are protected.
Black, 707 F.3d at 542.
Bailey v. United States, 568 U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 11-770, 2/19/13). Police cannot use a search warrant to detain suspects they find outside the target address absent reasonable suspicion. In July 2005, acting on information from a confidential informant, Suffolk County Police Department detectives obtained a search warrant for a basement apartment located in Wyandanch, N.Y. The search warrant specifically identified a basement apartment at the rear of the premises, and did not note that access to the basement door at the rear of the house was possible from both the basement apartment and from the house upstairs. Upon their arrival, detectives saw two individuals, including the petitioner, Chunon "Polo" Bailey, leave the back of the residence. They allowed the men to get into a black Lexus and drive off, but apprehended them about a mile from the home. By the time detectives returned to the house, with Bailey and the other man, Bryant Middleton, now held in the back of a police cruiser, officers searching the apartment had found at least five grams of cocaine and a firearm. Bailey was later convicted on three counts, possession of cocaine with intent to distribute, possession of a firearm by a felon, and possession of a firearm in furtherance of drug trafficking, and sentenced to concurrent terms of 300 and 120 months imprisonment, a consecutive term of 60 months imprisonment, and five years supervised release. On appeal, Bailey claimed that the police obtained evidence during an unlawful detention in violation of his Fourth Amendment rights. The Supreme Court agreed with Bailey. It held this was not a proper detention of people in the immediate vicinity incident to the execution of a search warrant allowed by Michigan v. Summers, 452 U. S. 692 (1981). Bailey left the apartment before the search began; and the police officers waited to detain him until he was almost a mile away. "The categorical authority to detain incident to the execution of a search warrant must be limited to the immediate vicinity of the premises to be searched."
State v. Brittingham, ___ Kan. ___, 294 P.3d 263 (No. 100888, filed 02/15/13). A maintenance person entered Brittingham's public housing apartment to check for damage after a sewer back up. She saw two unresponsive individuals lying in bed, and also observed drugs and drug paraphernalia in plain view on the coffee table. She reported her findings to her supervisor, who tried to roust the residents and later called the police. Police obtained consent to search and found several items used in evidence against Brittingham. Defendant appealed from denial of his motion to suppress. The Court of Appeals, and later the Supreme Court found that the maintenance workers were not government agents (despite their employment by a public housing authority), and this was a private search, followed by plain view and then a consent search. Thus, there was no error in denying the motion to suppress. See also Brittingham, 42 Kan. App. 2d 859, 218 P.3d 441 (2009).
State v. Murphy, ___ Kan. ___, 293 P.3d 703 (No. 100178, filed 02/01/13), affirming 42 Kan. App. 2d 933, 219 P.3d 1223 (2009). 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 Court of Appeals 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. The Supreme Court agreed. Rosen, J., dissents, along with Beier and Johnson.
State v. Martinez, ___ Kan. ___, ___ P.3d ___ (No. 99595, filed 02/01/13). Cops had a warrant for a guy named Aguirre, and were looking for him at his apartment complex. They saw Martinez backing out of a parking place and stopped him, one with a gun drawn, because of his known association with Aguirre. Once stopped, they found Aguirre hiding in the back seat. Martinez had drugs on him. He alleged the drugs should be suppressed because there was no reasonable suspicion to stop him. The Supreme Court agreed.
Descamps v. United States, 568 U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 11-9540, filed 06/20/13). Then Ninth Circuit's application of a modified categorical approach to defendant's prior conviction for burglary under California Penal Code section 459, and its determination that said conviction could serve as a predicate offense for the purposes of an enhanced sentence under The Armed Career Criminal Act (ACCA), which increases the sentences of certain federal defendants who have three prior convictions "for a violent felony," including "burglary, arson, or extortion," is reversed, where: 1) the modified categorical approach does not apply to statutes like California Penal Code section 459 for burglary that contain a single, indivisible set of elements; and 2) because generic unlawful entry is not an element, or an alternative element of, section 459, a conviction under that statute is never for generic burglary, and thus defendant's ACCA enhancement was improper.
Alleyne v. United States, 568 U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 11-9335, filed 04/17/13). Defendant's sentence for using or carrying a firearm in relation to a crime of violence that included an increased penalty for "brandishing a weapon" based on the sentencing judge's finding of brandishing, is vacated and remanded, where: 1) because mandatory minimum sentences increase the penalty for a crime, any fact that increases the mandatory minimum is an "element" that must be submitted to the jury; and 2) here, the sentencing range supported by the jury's verdict was five years' imprisonment to life, but the judge, rather than the jury, found brandishing, and this increased the penalty to which defendant was subjected and violated his Sixth Amendment rights.
Arizona v. Inter Tribal Council of Arizona, Inc., 568 U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 12–71, filed 06/17/13//13). The National Voter Registration Act of 1993 (NVRA) requires States to "accept and use" a uniform federal form to register voters for federal elections. 42 U. S. C. §1973gg–4(a)(1). That "Federal Form," developed by the federal Election Assistance Commission (EAC), requires only that an applicant aver, under penalty of perjury, that he is a citizen. Arizona law, like Kansas law, however, requires voter-registration officials to "reject" any application for registration, including a Federal Form, that is not accompanied by documentary evidence of citizenship. Respondents, a group of individual Arizona residents and a group of nonprofit organizations, sought to enjoin that Arizona law. Ultimately, the District Court granted Arizona summary judgment on respondents’ claim that the NVRA pre-empts Arizona’s requirement. The Ninth Circuit affirmed in part but reversed as relevant here, holding that the state law’s documentary-proof-of-citizenship requirement is pre-empted by the NVRA. The Supreme Court agreed with the 9th Circuit.
Dan's City Used Cars, Inc. v. Pelkey, ___ U.S. ___, 133 S.Ct. 1769 (2013). "Also exempted from preemption [pursuant to the Federal Aviation Administration Authorization Act of 1994] are state laws “relating to the price” of “vehicle transportation by a tow truck,” if towing occurs without prior consent of the vehicle owner. § 14501(c)(2)(C)."
Roosevelt-Hennix v. Prickett, ___ F.3d ___ (10th Cir. No. 12-1307, filed 05/16/13)(U.S. App. LEXIS 9809). A Colorado police officer used a Taser on plaintiff while her hands were cuffed behind her back and she was seated in the back seat of a police car. Plaintiff alleged excessive force. The officer claimed he was entitled to qualified immunity. Obviously, both sides had conflicting versions of the facts, but the district court denied summary judgment based on qualified immunity and the officer appealed. The Circuit affirmed, holding that there was evidence to support the Hennix's version of events. Some reminders worth noting: (1) officers should consider a person's ability to comply with commands prior to utilizing a Taser. This ability to comply may be the result of a medical condition, injury sustained while engaged with officers, or as the result of numerous Taser cycles; (2) in circumstances of mere passive resistance where there is no threat to the officers, a Taser is not an appropriate force option; and (3) In any use of force case, officers should consider (a) the seriousness of the crime at issue, (b) whether the suspect poses a threat to the officer or others, and (c) whether the suspect is actively resisting or attempting to evade arrest by flight.
State v. Ultreras, ___ Kan. ___, ___ P.3d ___ (No. 103527, filed 03/01/13). Ultreras worked in his dad's bar. A group of underage individuals came to the bar and one was asked to leave after being seen drinking alcohol. A fight ensued, and Ultreras started hitting people with a metal baton. Ultreras was ultimately charged with three counts of aggravated battery and moved to dismiss the charges claiming immunity from criminal prosecution under K.S.A. 21-3219. He argued his actions were justified in defense of others or property other than a dwelling. The district court held that Ultreras had the burden to prove by a preponderance of the evidence that his use of force was necessary, and failed to meet his burden. The Supreme Court disagreed and held that the burden of production to negate a claim of immunity rests with the State and the controlling standard of proof is probable cause. It concluded that the district court erred in requiring the defendant to prove by a preponderance of the evidence that the use of force was lawful, but affirmed, finding the district court's error harmless. The verdict and the record supports a determination that the State offered evidence sufficient for a person of "ordinary prudence and caution" to believe that Ultreras's use of force was not justified. It also rejected Ultreras's alternative means rule/super-sufficiency argument, finding the aggravated battery statute gives options within a means and not alternative means. It agreed with Ultreras's argument that he should have been able to ask the victims why they failed to honor their subpoenas, but held the error was harmless. Any damage to the victim's credibility would have been minimal.
Vagueness
City of Lincoln Center v. Farmway CO-OP Inc., ___ Kan. ___ (No. 105962, filed 12/20/2013) affirming in part and reversing in part 47 Kan.App.2d 335, 274 P.3d 680 (2012). Farmway expanded its grain drying facilities and neighbors complained about the noise and dust generated by the facility. Farmway was convicted of noise and nuisance violations and appealed. It filed a motion to dismiss alleging the noise ordinance was unconstitutionally vague because it failed to incorporate a reasonable person standard. The Court of Appeals agreed. A city noise ordinance that makes it illegal to "make, continue, maintain or cause to be made or continue any excessive unnecessary, unreasonable or unusually loud noise which either annoys, disrupts, injures or endangers the comfort, repose, health, peace or safety of others within the City," is too vague to be enforced. The ordinance does not give fair warning to those potentially subject to its reach because there are no objective standards imparted. Just as it was the case in Luna, the Lincoln ordinance contains "[l]oaded phrases and words." 28 Kan. App. 2d at 416. The difference here is that the Lincoln ordinance contains more of these "[l]oaded phrases and words." In substance, the Lincoln ordinance and the ordinance in Luna are really no different. The inclusion of the word "unreasonable" in the Lincoln ordinance does not cure its vagueness. Additionally, its public nuisance ordinances, based on UPOC 9.5 and 9.6, are also too vague to be enforced. The prohibited conduct under the Lincoln nuisance ordinances criminalizes any conduct "which injures or endangers the public health, safety or welfare." This ordinance does not give fair warning to those persons potentially subject to it as to what conduct is criminalized. The district court stated the ordinance is "so vague and indefinite that it fails to warn." Further, the ordinance does not adequately guard against arbitrary and discriminatory enforcement. This appears to be apparent through the evidence, or lack thereof, that Farmway has ever been out of compliance with regulatory standards for dust and industrial noise under State and Federal standards. The Court of Appeals also declared Lincoln Center's nuisance ordinance (UPOD 9.4 & 9.5) vague, but the Supreme Court reversed, holding it was not too vague.
Krist v. Kolombos Rest. Inc., ___ F.3d ___ (2nd Cir. No. 11–1263–cv, filed 07/24/12). Plaintiff alleged that defendant Coopertown diner discriminated against her on the basis of her disabilities in violation of Title III of the Americans with Disabilities Act ("ADA" or the "Act"), 42 U.S.C. §§ 12181–12189 and other provisons. Krist, who has been disabled since at least 2003, complained that beginning in late 2008, when she acquired a service dog, defendants discriminated against her by, inter alia, attempting to restrict her access and that of the dog to the restaurant and by verbally harassing her on account of her disability and use of the service dog. The district court ruled for the defendant. The circuit affirmed. The Act defines discrimination to include, to the extent pertinent in this action,
a failure to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such goods [and] services to individuals with disabilities, unless such modifications would fundamentally alter the nature of such goods [and] services.
42 U.S.C. § 12182(b)(2)(A)(ii). Regulations issued under Title III by the Department of Justice shortly after the ADA was enacted, which were effective until March 15, 2011, provided that "[g]enerally, a public accommodation shall modify policies, practices, or procedures to permit the use of a service animal by an individual with a disability." 28 C.F.R. § 36.302(c)(1) (1992); see also 28 C.F.R. § 36.302(c) (2011) (effective Mar. 15, 2011) (elaborating on accommodation requirements for individuals with disabilities aided by service animals). Even if the defendants treated plaintiff differently then before she acquired the dog, the ADA does nor require an atmosphere of civility. There is no evidence that defendants discriminated against her in violation of the ADA.
Smith v. Cain, 556 U.S. ___, 132 S.Ct. 627, 181 L.Ed.2d 571 (No. 10–8145, filed 1/10/12). Petitioner Juan Smith was convicted of first-degree murder based on the testimony of a single eyewitness. During state postconviction relief proceedings, Smith obtained police files containing statements by the eyewitness contradicting his testimony. Smith argued that the prosecution’s failure to disclose those statements violated Brady v. Maryland, 373 U. S. 83. Brady held that due process bars a State from withholding evidence that is favorable to the defense and material to the defendant’s guilt or punishment. The state trial court rejected Smith’s Brady claim, and the Louisiana Court of Appeal and Louisiana Supreme Court denied review. The United States Supreme Court reversed Smith's conviction. The State does not dispute that the eyewitness’s statements were favorable to Smith and that those statements were not disclosed to Smith. Under Brady, evidence is material if there is a "reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different." A "reasonable probability" means that the likelihood of a different result is great enough to "undermine[ ] confidence in the outcome of the trial." Kyles v. Whitley, 514 U. S. 419. Evidence impeaching an eyewitness’s testimony may not be material if the State’s other evidence is strong enough to sustain confidence in the verdict. United States v. Agurs, 427 U. S. 97 –113, and n. 21. Here, however, the eyewitness’s testimony was the only evidence linking Smith to the crime, and the eyewitness’s undisclosed statements contradicted his testimony. The eyewitness’s statements were plainly material, and the State’s failure to disclose those statements to the defense thus violated Brady.
Estate of B.I.C. v. Gillen, ___ F.3d ___ (10th Cir. No. No. 11-3219 (filed 12/18/12). (Summary by IMLA). On January 23, 2008, "BIC", a 23-month girl, died at the hands of her father's girlfriend. The estate filed suit against Linda Gillen, a social worker with the Kansas Department of Social and Rehabilitative Services (KSRS) for creating the danger that led to BIC's death and for loss of familial association. The district court dismissed the complaint on the grounds that Gillen had qualified immunity. The Tenth Circuit reversed. It reviewed the tragic history leading to BIC's death: the baby's mother was divorced and was living with her parents; the mother had died, and the girl and her siblings had been taken in by their father and his girlfriend. The grandparents and other relatives soon began to notice telltale scars and marks on the baby's body and school official saw abrasions and bruises on her older brother, CSC. They alerted KSRS and Ms. Gillen was assigned the case. She interviewed the father and girlfriend. The latter admitted to slapping CSC, but Gillen never reported the event to police. The grandparents subsequently attempted to reach Gillen for over a week with additional troubling details; when she finally accepted their call, she stated that allegations of child abuse were "police matters" that she would not get involved in. Late in 2007, the grandparents went to Gillen's office with a CD documenting BIC's bruises and scars. Ms. Gillen refused to accept the CD. The grandparents felt that Gillen had particular animosity towards their family. Less than one month later, police responded to a 911 call and found BIC with the father's girlfriend, unresponsive. She died a few days thereafter of brain injuries consistent with Shaken Baby Syndrome. Investigators within KSRS evaluated Ms. Gillen's cases and determined that she had treated BIC and CSC in a far less responsive manner than any other cases. The district court had found that this pattern of behavior was "not decidedly affirmative" and did not shock the conscience. The Tenth Circuit viewed the facts otherwise. The state is not generally implicated where a private citizen injures or kills another, but the answer is different where the state has assumed a special relationship with the decedent and where it creates the danger that causes the harm. The plaintiff must show a combination of affirmative behavior by the state and private violence causing the injury. Here, the private violence was manifest; the issue was whether Gillen's conduct was "affirmative." The Circuit Court found that it was. Gillen's persistent refusal to take action-including rejecting photographic evidence of abuse-- went far beyond mere incompetence or negligence. This behavior could undoubtedly shock the conscience. The Circuit Court reversed the lower court's grant of qualified immunity and remanded for further proceedings.
Marquez v. City of Phoenix, ___ F.3d ___ (9th Cir. No. 10 17156, 2012 U.S. App. LEXIS 19048 (September 11, 2012). In a case almost too bizarre for words, the 9th Circuit affirmed an order granted officers summary judgment on a Taser excessive force claim that resulted in an in-custody death. The highly condensed story is that police used a Taser several times (twice in dart mode, several times in drive stun mode) against Ronald Taylor, a large, noncompliant man, who was attempting to perform an exorcism on his three year old granddaughter. The coroner ruled his death was caused by "excited delirium," although marijuana was the only drug in Ronald's system. The coroner also listed "hypertensive/ atherosclerotic cardiovascular disease" as a contributing condition. The Ninth Circuit pointed out that the force used does not have to be the minimum necessary - just a reasonable amount, stating "[p]olice officers . . . are not required to use the least intrusive degree of force possible." Forrester v. City of San Diego, 25 F.3d 804, 807-08 (9th Cir. 1994); see also Gregory v. County of Maui, 523 F.3d 1103, 1107 (9th Cir. 2008). Weighing the Graham v. Conner factors, the Ninth Circuit held that although officers used significant force in this case, the force used was reasonable and justified by the significant government interest at stake.
Rosa v. Taser International, Inc., ___ F.3d ___ (9th Cir. No. 09-17792, filed 7/10/12). Taser Had No Duty to Warn of Metabolic Acidosis. The Ninth Circuit upheld dismissal of a failure to warn lawsuit against the company, concluding that Taser International had no reason to advise police agencies in 2004 that the stun guns could cause the condition. In August 2004, police in Del Rey Oaks, Calif. responded to a call regarding an EDP walking down a street and yelling. The EDP, Michael Rosa, was under the influence of meth and refused to comply with verbal orders. The officers, thinking that Rosa was either "high or crazy," subdued Rosa by deploying a Taser M26 multiple times, and handcuffing Rosa. It took six officers to subdue Rosa, who continued to resist after an officer attempted to handcuff him. After officers had Rosa in restraints, they rolled him onto his side. At that point, Rosa slumped. His lips had turned blue, and his breathing was erratic. He quickly stopped breathing entirely. Despite resuscitation efforts, Rosa died. Rosa’s death was subsequently linked to metabolic acidosis, a condition under which lactic acid accumulates more quickly than the body can dispose of it, causing the pH in the body to decrease. The condition makes sudden cardiac arrest more likely. Rosa’s parents and daughter, (the plaintiffs) sued Taser International, asserting that Rosa died because the company provided an inadequate warning of the risk that shocks can cause fatal levels of metabolic acidosis. They pursued both strict liability and negligence theories under California law based upon this failure to warn. Taser International maintains there is no evidence that Tasers cause acidosis, but began warning about it anyway in 2009. After discovery, the district court granted summary judgment in favor of Taser, concluding that the plaintiffs had not established a triable issue of fact that the risk of metabolic acidosis was known or knowable when the M26 at issue was distributed in December 2003, (or even when Rosa died the following August). The Ninth Circuit Court of Appeals affirmed summary judgment, finding that the district court had reached the right conclusion.
Marsh v. County of San Diego, ___ F.3d ___ (9th Cir. No. 11-55395, filed 05/29/12/). Not only are autopsy photos private, but the deceased's family has a constitutional right to bar the release of such photos even when taken as part of a criminal investigation. Or so says the Ninth Circuit Court of Appeals. The court was tasked with deciding whether a former San Diego prosecutor violated Brenda Marsh's constitutional right to privacy when he released autopsy photos of her 2-year-old son. He did. Marsh's story begins in 1983, when her son sustained a head injury while being cared for by her then-boyfriend. He was convicted of murder despite claiming the toddler had fallen off the couch. In 2006, this conviction was set aside in light of new medical evidence. Upset, the prosecuting attorney wrote an article and sent it, along with copies of the boy's autopsy photos, to the media. Brenda Marsh sued, arguing that the dissemination of these photos violated her 14th Amendment right to privacy. Citing the "long-standing tradition of respecting family members' privacy in death," the court agreed. Family members have a constitutional right to protect the "memory and images of a deceased child against unwarranted public exploitation by the government." Though Marsh now affirmatively has a right to keep these autopsy photos private, she still can't sue the city or former prosecutor. Government officials are immune from suits when the underlying constitutional right was not clearly established at the time of the alleged violation. Because this was the first time the Ninth Circuit considered such questions, whether Marsh had a constitutional right was previously unknown. However, the government has now been officially put on notice. Families can now sue should prosecutors and investigators fail to keep autopsy photos private.
Filarsky v. Delia, 565 U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 10-1018, filed 4/17/12). The United States Supreme Court held that a private attorney hired by the government to conduct an investigation was entitled to seek qualified immunity in defense of a Section 1983 claim. Delia was a firefighter who missed work for an extended period claiming to be ill. His city employer became suspicious when Delia was spotted buying fiberglass insulation and other building supplies. The city later initiated an internal affairs investigation and hired a private attorney, Filarsky, to conduct it. The attorney and city officials confronted Delia at his home. Delia admitted buying the supplies but claimed he didn't use them. The attorney and city officials demanded that Delia produce the unused materials and Delia did so. Delia filed a Section 1983 claim against the city and various officials and the private attorney. The district court granted summary judgment to the individual defendants based on qualified immunity. The Ninth Circuit affirmed as to all individual defendants but Filarsky, concluding that as a private person he was not entitled to qualified immunity. The United States Supreme Court reversed. In a 9-0 decision, the Court held that a private individual temporarily retained by the government to carry out its work - notably the basic function of an investigator - is entitled to seek qualified immunity from suit under Section 1983.
Rehberg v. Paulk, 565 U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 10-788, filed 04/02/12). A complaining witness in a grand jury proceeding is entitled to the same immunity in an action under 42 U. S. C. §1983 as a witness who testifies at trial. Rehburg was indicted three times (although each was later dismissed) based in part on Paulk's testimony to the grand jury. Paulk was an investigatory for the district attorney. Rehburg then sued Paulk alleging a violation of 42 U. S. C. §1983. Rehburg contended that Paulk conspired to present and did present false testimony to the grand jury. Paulk moved to dismiss, arguing, among other things, that he was entitled to absolute immunity for his grand jury testimony. The United States District Court for the Middle District of Georgia denied respondent’s motion to dismiss, but the Court of Appeals reversed, holding, in accordance with Circuit precedent, that respondent was absolutely immune from a §1983 claim based on his grand jury testimony. The United States Supreme Court agreed with the Circuit, holding the factors that justify absolute immunity for trial witnesses apply with equal force to grand jury witnesses, even when they are law enforcement witnesses.
Houston v. City of New Orleans, ___ F.3d ___ (5th Cir. No. 11-30198, filed 03/15/12). The Second Amendment does not extend to a right to bear a specific arm. One month before his July 2008 arrest, New Orleans police seized Errol Houston's Glock 22 .40-caliber pistol. Approximately a month later, the district attorney entered nolle prosequi (abandonment of prosecution) on the charges against Houston, but the city didn't return the pistol. Almost a year after his arrest, the city still had not returned Houston's gun, despite multiple requests. Houston sued, claiming violations of the right to keep and bear arms and of due process, and seeking the return of his firearm. Houston's claims were dismissed under Rule 12(c). The district court ruled that retention of the firearm was "reasonable ... because firearms are needed as evidence in instituting criminal prosecution" and that Houston "does not have a Second Amendment right to the particular firearm seized." The Fifth Circuit Court of Appeals agreed. "The right protected by the Second Amendment is not a property-like right to a specific firearm, but rather a right to keep and bear arms for self-defense." Cf., Walters v. Wolf, 660 F.3d 307 (8th Cir. 2011)(where no statutory procedure provided for return of firearm in the criminal action, due process action is a proper remedy even though a state tort action is available).
Messerschmidt v. Millender, 565 U.S. ___, 132 S. Ct. 1235, 182 L. Ed. 2d 47 (No. 10-704, filed 2/22/12). Police were doing a domestic stand-by while Kelly moved out of her boyfriend's apartment, but were called away on an emergency. The boyfriend, Bowen, showed up and assaulted and battered Kelly, including shooting at her with a sawed-off shotgun. Police obtained a warrant for Bowen's mother's house that authorized a search for all guns and gang-related material. Bowen's mom sued the officers claiming the search was illegal. The Ninth Circuit held the warrant was overly broad and denied the officers summary judgment. The Supreme Court reversed, holding the officers were entitled to qualified immunity. Given Bowen’s possession of one illegal gun, his gang membership, his willingness to use the gun to kill someone, and his concern about the police, a reasonable officer could conclude that there would be additional illegal guns among others that Bowen owned. Also, a reasonable officer could believe that seizure of the firearms was necessary to prevent further assaults on Kelly. Further, presentment of the warrant and affidavit to the officer's supervisors and an ADA, all of which approved, showed the officers relied on issuance of the warrant in good faith.
State v. O'Rear, ___ Kan. ___, ___ P.3d ___ (No. 99487, filed 2/17/12). O'Rear was a security guard at a bank. He saw Jackson walk into the bank wearing a stocking cap and sunglasses, and thought Jackson had a gun (which was actually a cane). O'Rear shot him in center body mass. The State charged O'Rear with reckless aggravated battery in violation of K.S.A. 21-3414(a)(2)(A) and the jury convicted him. O'Rear appealed, alleging there was insufficient evidence of recklessness. The State argued that O'Rear's reckless act was not in pulling the trigger, but instead it was in deciding to shoot with too little information. The Supreme Court reversed the conviction. "The only evidence presented at trial was that O'Rear intended to shoot Jackson in center mass; in other words, he intended to cause great bodily harm to Jackson. The reasons he intended to do so may have been born of misperception, but the intention remained. The mental state of recklessness is incompatible with a mental state where a person acts with knowledge, willfulness, or purposefulness, meaning a person cannot act both intentionally and recklessly with respect to the same act. State v. Shannon, 258 Kan. 425, 429, 905 P.2d 649 (1995). Rather, an act is either intended or not intended; it cannot simultaneously be both. Consequently, guilt of one necessarily negates guilt of the other."
Garcia v. Anderson, 46 Kan.App.2d 1094, 268 P.3d 1248 (2012), rev. denied ___ Kan. ___ (02/07/13). Garden City Police officers stopped Garcia's vehicle for a defective brake light. They called in the wrong driver's license number, resulting in Garcia's brief arrest for warrants and INS holds. Once officers realized their error, they released Garcia without an apology or explanation. Garcia filed a KHRC complaint alleging racial profiling and the KHRC found probable cause. Garcia sued pursuant to K.S.A. 22-4611. The district court dismissed her complaint for failure to comply with K.S.A. 2010 Supp. 12-105b(d). The Court of Appeals affirmed, stating the requirement that claimants give notice of their claim pursuant to 12-105b(d) is a reasonable restriction that applies equally to all persons wishing to sue the government.
State v. Edwards, ___ Kan.App.2d ___, ___ P.3d ____ (No. 106435, filed 11/02/12). Charles L. Edwards, a Wichita area high school music instructor, engaged in sexual intercourse with one of his 18-year-old high school students. He appealed his unlawful sexual relations conviction, contending the statute defining his conduct as a crime is unconstitutional because it infringes upon his fundamental right, while in the privacy of his home, to engage in sexual conduct with a consenting adult. The Court held the right of privacy does not encompass the right of a high school teacher to have sex with students enrolled in the same school system. The legislature had a rational basis for recognizing the disparity of power inherent in the teacher/student relationship.
Massachusetts v. Dep't of Health and Human Services, ___ F.3d ___ (1st Cir. No. 10-2204, filed 05/31/12). Section 3 of the Defense of Marriage Act (DOMA) is ruled unconstitutional as a violation of equal protection, where: 1) intermediate scrutiny was not appropriate, but in areas where state regulation has traditionally governed, the court may require that the federal government interest in intervention be shown with special clarity; 2) the statute's consequences did not violate the Tenth Amendment or Spending Clause, but given that DOMA intrudes broadly into an area of traditional state regulation, a closer examination of the justifications that would prevent DOMA from violating equal protection is uniquely reinforced by federalism concerns; and 3) the rationales offered in support of section 3 of DOMA did not provide adequate support for it.
Byrd v. Kansas Department of Revenue, ___ Kan. ___, ___ P.3d ___ (No. 101189, filed 10/26/12), affirming 43 Kan.App.2d 145, 221 P.3d 1168 (No. 101,189, filed 01/15/10). 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. The Supreme Court interpreted the term "mail" to include ensuring the item was properly addressed, stamped and mailed through an office mail system, and therefore it was not necessary to liberally construe the statute nor consider substantial complaince.
Olson v. Kansas Dept. of Revenue, 286 P.3d 1160, 2012 WL 5205620 (unpublished, 10/19/12). Olson pulled into a driveway adjacent to a checklane. This made the officer working the checklane suspicious. The officer approached and spoke with Olson. He could smell alcohol but was not sure it was coming from Olson or a passenger. Olson's license indicated he was under 21 years old. Olson told the officer he had "too much" to drink that night. On the one leg stand test he exhibited 1 clue and no clues on the walk and turn test. The PBT indicated .053. Olson was under arrest for MIP (alcohol was found in the vehicle) and MIC. The officer read the implied consent and Olson's BAC was 0.048. The officer gave the Olson a notice of suspension form for having a BAC over 0.02. Olson's DL was suspended for the test failure and he argued that a minor cannot be arrested for driving with a BAC less than 0.08. Olson claimed the officer did not have reasonable grounds to subject him to the evidentiary breath test. The appellate court noted K.S.A. 8-1001 says an officer can request a test under the implied consent law if it is shown the officer had reasonable grounds to believe that he was operating under the influence. The implied consent law states "or was under the age of 21 years while having alcohol or other drugs in such person's system." The court looked to Olson driving into an adjacent lot, bloodshot eyes, smell of alcohol, admitted to drinking too much. The officer also noted Olson was under age. The PBT indicated 0.053 which is a violation of K.S.A. 41-727(a). The court also noted Young v. KDOR, 2012 WL 1450445 which had similar facts. The evidence established Olson was operating a vehicle while under the influence of alcohol.
Swank v. Kansas Dept. of Revenue, 294 Kan. 871, 281 P. 3d 135 (No. 102223, filed 07/27/12). After a dust-up between Swank, Jana Waddell, and Waddell's ex-husband. Jana said Swank was extremely drunk, chased her home and drove recklessly back and forth in front of Jana's house. A Yates Center officer responded to Waddell's ex-husband's house and found Swank's car in the driveway. Swank was not in the car when the officer arrived. Swank admitted that she had been drinking and admitted that she had followed Waddell. The officer did not ask Swank if she had consumed any alcohol after she pulled into the driveway, i.e., after she had stopped driving, but he arrested her for DUI and she blew a 0.203. The district court set the suspension aside after Swank testified she drank some hot damn after pulling into the driveway. The Supreme Court reversed the Court of Appeals unpublished decision overturning the district court's ruling. It held that post-driving alcohol consumption is a fact potentially relevant to the determination of the enumerated issue of whether an officer had "reasonable grounds to believe the person was operating a vehicle while under the influence of alcohol." K.S.A. 8-1020(h)(2)(A); cf. K.S.A. 8-1020(l)(2) (addressing evidence that can be admitted at administrative hearing on license suspension, including testimony of licensee). The Supreme Court went on to say, "an officer cannot insulate his or her assessment of the existence of reasonable grounds from review or criticism by a district or appellate court by maintaining a posture of willful ignorance on a suspect's post-driving alcohol consumption. Reasonableness is key. If the situation is such that a reasonable law enforcement officer would investigate, it behooves an actual officer to do so. This is particularly true when an officer's personal observations of the scene or the suspect suggest the possibility of post-driving alcohol consumption. Such consumption is a factor to be considered and evaluated, not ignored."
Bolton v. Kansas Department of Revenue, ___ Kan.App.2d ___, ___ P.3d ____ (No. 105188, filed 03/23/12). An operator of the Intoxilyzer 8000 machine need not ask a driver to remove his or her dentures for the operator to substantially comply with the testing procedures established by the Kansas Department of Health and Environment. Bolton was stopped and blew a 0.226. He contended that the officer did not substantially comply with the protocol. The Court of Appeals disagreed.
Storey v. Taylor, ___ F.3d ___ (10th Cir. No. 11-2180, filed 10/01/12). Los Lunas, New Mexico police received an anonymous call reporting a loud argument at Storey's residence. When officers arrived, they did not hear anything and saw no signs of violence. Storey answered the door and told the officers that he and his wife had argued, but that she was not home at that moment. Officers explained why they were present, and that they needed to make sure everyone was safe. Storey refused to tell officers what the argument was about. Officers ordered Storey to step outside of the house. He refused and was arrested. Storey's wife arrived during the arrest, and did not have any signs of injury. Storey filed suit claiming, among other things, that the officers violated his Fourth Amendment right against unreasonable seizures because they arrested him in his home without a warrant or exigent circumstances. The district court granted the officers summary judgment. The Circuit reversed. The Circuit found that absent exigent circumstances, officers had no basis to order Storey out of his house. A report of a domestic argument-standing alone-does not demonstrate exigent circumstances per se. United States v. Davis, 290 F.3d 1239, 1244 (10th Cir. 2002). Thus, officers responding to a report of a domestic dispute must point to something beyond the mere fact of an argument to demonstrate an "objectively reasonable basis to believe there is an immediate need to protect the lives or safety of themselves or others." "In sum, a report of a loud argument-without more-that has ceased by the time an officer arrives, although relevant to the exigent circumstances inquiry, does not alone create exigent circumstances to justify a warrantless arrest." The Circuit also held the law against illegal warrantless home arrests had been clearly established (citing a 2010 case - the arrest in this case took place in 2007), so it denied qualified immunity.
State v. Skillern, ___ Kan.App.2d ___, ___ P.3d ____ (No. 107600, filed 11/09/12). Skillern slapped her boyfriend, and pled to a 1st offense domestic battery. She asked for probation, but the judge sentenced her to 48 consecutive hours first. Skillern appealed and argued that there is no 48 hour consecutive minimum. The Court of Appeals agreed, holding that K.S.A. 2011 Supp. 21-5414(b)(1) only requires that a minimum 48 hour sentence be imposed, not served.
Blueford v. Arkansas, 565 U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 10-1320, filed 05/24/12). The State of Arkansas brought charges against Alex Blueford for the murder of 20-month-old Matthew McFadden, Jr. Initially, the forewoman told the court that the jury unanimously agreed that Blueford had not committed capital murder or first-degree murder, but that it was unable to arrive at a verdict on the lesser-included offense of manslaughter, and had not reached the lesser-included offense of negligent homicide. Ultimately, the jury announced that it was deadlocked, and the court declared a mistrial. Blueford moved to prevent retrial of the murder charges, arguing that the jury had acquitted him on those counts. Arkansas contended that there was no acquittal because the hung jury was unable to reach a verdict. The Supreme Court of Arkansas denied Blueford’s motion, and he appealed to the U.S. Supreme Court. Blueford argued that allowing a retrial on all the charges would violate the Constitution’s Double Jeopardy Clause and allow the state to overreach its authority. The Court disagreed and held that Blueford had not been acquitted, so double jeopardy does not prevent a retrial.
Drivers Privacy Protection Act
Senne v. Village of Palatine, 695 F.3d 597 (7th Cir. 2012), cert. denied 133 S.Ct. 2850 (06/24/13). Putting a vehicle owner's personal information on a parking ticket left on an windshield is an unauthorized disclosure and violates the Drivers Privacy Protection Act. On November 27, 2013 on remand, the district court granted the Village of Palatine's motion for summary judgment. Despite personal information being listed on the ticket being a disclosure under the DPPA, it was in fact a permissible use of information for the purposes of identification and verification of the particular individual to whom the ticket was written. The court agreed that the personal information is often used to void erroneously issued tickets and to help identify drivers lacking other identification. The district court was careful to point out that "not all of the personal information disclosed on parking tickets in Palatine may be absolutely necessary..." Senne has filed an appeal from the ruling granting Palatine summary judgment, so the 7th Circuit will be seeing the case again.
State v. Ahrens, ___ Kan. ___, ___ P.3d ___ (No. 103362, filed 12/21/12). The terms"operating" or "attempting to operate" a vehicle do not create alternative means of establishing the crime of driving under the influence (DUI) under K.S.A. 2008 Supp. 8-1567(a)(3). A deputy stopped Ahrens for having a taillight out, and noticed the usual indicators of intoxication. Ahrens refused a breath test and was convicted of DUI. He alleged he was denied a unanimous jury verdict because the statute contains alternative means. Applying State v. Brown, 295 Kan. 181, 284 P.3d 977 (2012), the Court rejected his argument, finding the elements of the crime are (1) driving and (2) being under the influence. It found the legislature employed the phrase "operate or attempt to operate" in order to encompass a broader set of factual circumstances that could establish the driving element. See also State v. Perkins, ___ Kan. ___, ___ P.3d ___ (No. 103735, filed 12/21/12)(same); State v. Suter, .___ Kan. ___, ___ P.3d ___ (No. 103164, filed 12/21/12)(same).
Schrader v. Kansas Dept. of Revenue, ___ Kan. ___, ___ P.3d ___ (No. 103176 filed 12/13/12), affirming 45 Kan. App. 2d 216, 247 P.3d 681 (2011)(No. 103176, filed 01/24/11). An Oberlin officer stopped Schrader late at night for traffic violations. Schrader finally stopped in his driveway, and initially ignored the officer's requests to remain. After being physically stopped, he smelled of alcohol and showed poor balance and coordination. Schrader refused field sobriety tests and a PBT. He was arrested for driving while suspended and transported to the Sheriff's office, where he refused a breath test. Although the officer had reasonable grounds to believe that Schrader was driving while under the influence, the only reason the officer gave for the arrest was driving while suspended. The court held that K.S.A. 8-1001(b)(1) requires an arrest for an alcohol-related driving offense rather than simply requiring an arrest for any offense involving operation of a motor vehicle, and held that Schrader's non-existent driving privileges should not have been suspended for refusing a breath test. The Kansas Supreme court agreed with the Court of Appeals and overruled State v. Counseller, 22 Kan. App. 2d 155, 912 P.2d 757, rev. denied 260 Kan. 997 (1996).
Sloop v. Kansas Dept. of Revenue, ___ Kan. ___, ___ P.3d ___ (No. 103334, filed 12/13/12). TPD officer Bergerhofer stopped Sloop around midnight after he made an unusual left turn described as "started turning, stopped, and started turning again." Bergerhofer followed Sloop due to the unusual turn and because he was "sitting unusually close to his steering wheel." He also had a tag light out. Sloop had the usual indicators of intoxication and refused a breath test. The Supreme Court reversed Sloop's suspension because the evidence was insufficient to establish probable cause for the defendant's arrest. In doing so, the Court disapproved language from Bruch v. Kansas Dept. of Revenue and other cases saying the proof needed to establish probable cause is sufficient "if the information leads a reasonable officer to believe that guilt is more than a possibility." Bruch v. Kansas Dept. of Revenue, 282 Kan. 764, 775-76, 148 P.3d 538 (2006) (quoting Sullivan v. Kansas Dept. of Revenue, 15 Kan. App. 2d 705, 707, 815 P.2d 566 [1991]). The Court said the phrase crept into its caselaw apparently without explanation, and it has received undue emphasis in the probable cause calculus, sometimes to the exclusion of other considerations. Probable cause must be determined by examination of totality of the circumstances.
State v. Benson, ___ Kan. ___, 287 P.3d ___ (No. 97905, filed 11/09/12). Benson argued that admission of a certificate of calibration for the Intoxilyzer 5000 machine used to determine the level of alcohol in Benson's breath without calling the person that calibrated the instrument violated his rights under Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). The Court held that certificate of calibration is not testimonial in nature, therefore no violation occurred.
State v. Reese, ___ Kan.App.2d ___, ___ P.3d ____ (No. 106,703 filed 08/09/12), reversed, see Reese case above. Reese was arrested for his 5th lifetime DUI on July 3, 2009. He argued the 10-year lookback, effective at the time of sentencing in 2011, should wipe out his priors from 1983, 1985, 1988, and 1999. Judge Bornholdt disagreed and sentenced him as a 5th offender. The Court of Appeals affirmed. K.S.A. 2011 Supp. 8-1567(j)(3), which shortens the "look-back" period for determining the number of previous DUI convictions taken into account from a lifetime to only those convictions occurring on or after July 1, 2001, cannot be applied retroactively. It applies only to crimes committed on or after the effective date of the statutory amendment.
State v. Rickerson, ___ Kan.App.2d ___, 276 P.3d 240 (No. 105863, filed 05/18/12). A DUI defendant's conviction is reversed based on illegal detention for six hours pursuant to an administrative policy adopted by the Johnson County District Court in 1990 and readopted in 2006 that required a mandatory 6-hour detention of all persons arrested for driving under the influence (DUI) before they were allowed to post a scheduled bond. There is no dispute that this policy was unlawful because it did not require an individualized determination as to whether the driver is intoxicated and a danger to himself or herself or others. State v. Cuchy, 270 Kan. 763, 19 P.3d 152 (2001). The Court of Appeals finds, as did the Cuchy court, that dismissal is the appropriate sanction for institutional noncompliance and systematic disregard of the law.
State v. May, ___ Kan. ___, ___ P.3d ___ (No. 102248, filed 02/01/12). A trooper arrested May for driving under the influence. May agreed to a breath test, but blew an insufficient sample. The trooper deemed it a refusal. May immediately requested an opportunity to retake the breath test. The trooper denied the request. Judge Bennett found the request was a valid rescission and suppressed any evidence of a test refusal or of the test result on the insufficient sample. The Court of Appeals affirmed, as did the Supreme Court on petition for review. Based on the five factors in Standish v. Department of Revenue, 235 Kan. 900, 902-03, 683 P.2d 1276 (1984), this was a valid rescission of a refusal.
City of Wichita v. Molitor, 46 Kan. App. 2d 958, 959, 268 P.3d 498 (2012), reversed, ___ Kan. ___ (No. 104940, filed 01/30/15). Officers saw Molitor come out of a bar about 2300 hours. They stopped him for failing to signal a turn. While stopping, Molitor ran over and parked on a curb. Officers noticed usual indicators of intoxication. Molitor exhibited 6/6 clues on the Horizontal Gaze Nystagmus (HGN) test. He showed 1/4 on the one leg stand (OLS). The preliminary breath test (PBT) was 0.09 and the breath test was 0.091. Molitor argues that it was error for the district court to consider evidence of HGN test in determining whether a police officer had reasonable suspicion to request that he submit to a PBT. The Court held it was appropriate for the district court to consider the results of the HGN test administered to Molitor as part of its reasonable suspicion analysis under K.S.A 2010 Supp. 8-1012(b). Because reasonable suspicion is a less demanding standard than probable cause and requires a showing considerably less than a preponderance of the evidence, we find that HGN test results may, under appropriate circumstances, be considered as part of the totality of the circumstances in determining whether a law enforcement officer has reasonable suspicion to request a PBT. It also held that even without the HGN evidence, there was reasonable suspicion for the police officer to believe that Molitor had been operating a vehicle under the influence of alcohol and affirmed.
State v. Suter, ___ Kan. ___, ___ P.3d ___ (No. 103164, filed 12/21/12). The legislature's use of the disjunctive "or" in the phrase "canceled, suspended or revoked" in K.S.A. 2008 Supp. 8-262 was not intended to create three means of committing the crime of driving while suspended.
The actus reus of the crime of driving while suspended, as prohibited by K.S.A. 2008 Supp. 8-262, is driving without a privilege to do so. The phrase "canceled, suspended or revoked" simply describes the different factual circumstances that can prove that material element of the crime.
Jordan v. City of New London, ___ F.3d ___ (2nd Cir. No. ____ filed 8/23/12). A man whose bid to become a police officer was rejected after he cored too high on an intelligence test has lost an appeal in his federal lawsuit against the city. The 2nd U.S. Circuit Court of Appeals in New York upheld a lower court's decision that the city did not discriminate against Robert Jordan because the same standards were applied to everyone who took the test. Jordan, a 49-year-old college graduate, took the exam in 1996 and scored 33 points, the equivalent of an IQ of 125. But New London police interviewed only candidates who scored 20 to 27, on the theory that those who scored too high could get bored with police work and leave soon after undergoing costly training. The average score nationally for police officers is 21 to 22, the equivalent of an IQ of 104, or just a little above average. Jordan alleged his rejection from the police force was discrimination. He sued the city, saying his civil rights were violated because he was denied equal protection under the law. But the U.S. District Court found that New London had "shown a rational basis for the policy." In a ruling dated Aug. 23, the 2nd Circuit agreed. The court said the policy might be unwise but was a rational way to reduce job turnover. Jordan has worked as a prison guard since he took the test.
MOCHA Society Inc et al v. City of Buffalo, ___ F.3d ___ (2nd Cir. Nos. 11-2184 and 10-2168, filed 07/30/12). The city of Buffalo, New York, did not discriminate against African-Americans with the test it used to promote firefighters, a federal appeals court has ruled. Although black firefighters generally had a lower pass rate (43%) than their white counterparts (76%), Buffalo demonstrated that the test assessed the necessary skills for the job of fire lieutenant.
Pearce v. University of Louisville ex rel. its Bd. of Trustees, 2011 WL 5599540 (Ky. App. 2011). The Kentucky Police Officer's Bill of Rights does not apply to department-initiated disciplinary proceedings. The case involved Todd Pearce, who had been terminated from his job as a police officer for the University of Louisville. The charges against Pearce included allegations that he had failed to timely respond to a fire alarm and then failed to write a report about the incident, and that he had improperly engaged in a wrong-way traffic pursuit. The court determined the language used in the bill suggests "that the purpose of the statute is to provide procedural due process to police officers who are accused of wrongdoing by citizens."
Downtown Bar and Grill, LLC v. State, ___ Kan. ___, ___ P.3d ___ (No. 104761, filed 04/06/12). Downtown Bar and Grill cannot meet its burden to show likely success on the merits, therefore the court dissolves the injunction preventing enforcement of 2010 House Bill 2221, otherwise known as the Kansas Indoor Clean Air Act, L. 2010, ch. 8, secs. 2-8; K.S.A. 2010 Supp. 21-4009 et seq. Effective July 1, 2010, which prohibits smoking in public places and places of employment.
Moore v. Madigan, ___ F.3d ___ (7th Cir. No. 12-1269, 12-1788, filed 12/11/12). The 7th Circuit strikes a blow for self defense and strikes down the last remaining ban on concealed carry by the state of Illinois. The law allowed ownership and the right to bear on a person's own property, but not out in public. Relying largely on Heller and McDonald, the court struck down the prohibition. "A right to bear arms thus implies a right to carry a loaded gun outside the home." After examining the history of the right to bear arms for self-defense, the court stated:
Twenty-first century Illinois has no hostile Indians. But a Chicagoan is a good deal more likely to be attacked on a sidewalk in a rough neighborhood than in his apartment on the 35th floor of the Park Tower. A woman who is being stalked or has obtained a protective order against a violent ex-husband is more vulnerable to being attacked while walking to or from her home than when inside. She has a stronger self-defense claim to be allowed to carry a gun in public than the resident of a fancy apartment building (complete with doorman) has a claim to sleep with a loaded gun under her mattress. But Illinois wants to deny the former claim, while compelled by McDonald to honor the latter. That creates an arbitrary difference. To confine the right to be armed to the home is to divorce the Second Amendment from the right of self-defense described in Heller and McDonald. It is not a property right—a right to kill a houseguest who in a fit of aesthetic fury tries to slash your copy of Norman Rockwell’s painting Santa with Elves. That is not self-defense, and this case like Heller and McDonald is just about self-defense.
Moore, slip opinion at 8. However, in deference to the legislature, the Court stayed its mandate for 180 days to allow the Illinois legislature to craft a new gun law that will impose reasonable limitations, consistent with the public safety.
National Rifle Ass'n. v. Bureau of Alcohol, Tobacco and Firearms, ___ F.3d ___ (5th Cir. No. 11-10959, filed 10/25/12). The Fifth Circuit shot down an NRA lawsuit that sought to allow gun sales to adults 18 to 20 years old. The NRA challenged 18 U.S.C. §§ 922(b)(1) and (c)(1), which prohibit gun sales to anyone under 21. Lawyers for the NRA argued the ban was unconstitutional under the Second Amendment's right to bear arms and the Fifth Amendment's right to equal protection. The Court disagreed. Such a ban "appears consistent with a longstanding tradition of age- and safety-based restrictions on the ability to access arms," the opinion states. The court also noted that 18- to 20-year-olds could still lawfully use handguns for self-defense and for other purposes like recreation. The Court reasoned that the under-21 gun sale ban presents a reasonable means to achieve an important government interest -- addressing the "particular problem" of "young persons under 21, who are immature and prone to violence, easily accessing handguns," the court held.
Regents of the University of Colorado v. Students for Concealed Carry on Campus, LLC., 2012 CO 17, No. 10SC344, 3/5/12). The Colorado Supreme Court ruled that the University of Colorado cannot ban concealed-carry permit holders from bringing guns onto campus. Students for Concealed Carry on Campus, a gun-rights group, filed a lawsuit against the university in 2008, claiming its concealed weapon policy violated state gun laws. James Manley, the attorney representing the group, argued that state law prohibits local governments from limiting state concealed-weapon rights. Attorneys with the university argued that the law applies to cities and counties, not its campuses. The Supreme Court held that the CCA’s comprehensive statewide purpose, broad language, and narrow exclusions show that the General Assembly intended to divest the Board of Regents of its authority to regulate concealed handgun possession on campus. University officials said they would allow concealed weapons on campus in two weeks.
Phelps-Roper v. City of Manchester, ___ F.3d ___ (8th Cir. No. 10-3197, filed 10/16/12). The City of Manchester’s revised ordinance prohibiting picketing or other protest activities within 300 feet of a funeral service or burial beginning one hour before the service until one after the service survives First Amendment intermediate scrutiny because it serves a significant governmental interest (protecting the privacy of family members and other funeral attendees), is narrowly tailored and leaves open ample alternate channels of communication. The Eighth Circuit reversed the grant of summary judgment by the District Court for the Eastern District of Missouri: plaintiffs’ rights to protest homosexuality was not unduly burdened by the revised ordinance, which was content neutral and reasonable as to time, manner and place.
United States v. Alvarez, 567 U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 11-210, filed 6/28/12). In a case involving a conviction under the Stolen Valor Act, which makes it a crime to falsely claim receipt of military decorations or medals and provides an enhanced penalty if the Congressional Medal of Honor is involved, 18 U.S.C. sections 704(b), (c), the Ninth Circuit's decision reversing the conviction and finding the Stolen Valor Act invalid under the First Amendment is affirmed where the Act infringes upon speech protected by the First Amendment. Cf. United States v. Strandlof, 667 F. 3d 1146 (2012).
ACLU v. Alvarez, 679 F. 3d 583 (7th Cir. No. 11-1286, 5/8/12), cert. denied, ___ U.S. ___ (No. 12-318, 11/26/12). The Illinois eavesdropping statute makes it a felony to audio record "all or any part of any conversation" unless all parties to the conversation give their consent. 720 ILL. COMP. STAT. 5/14-2(a)(1). The statute covers any oral communication regardless of whether the communication was intended to be private. Id. 5/14-1(d). The offense is normally a class 4 felony but is elevated to a class 1 felony—with a possible prison term of four to fifteen years—if one of the recorded individuals is performing duties as a law-enforcement officer. Id. 5/14-4(b). Illinois does not prohibit taking silent video of police officers performing their duties in public; turning on a microphone, however, triggers class 1 felony punishment. The question here is whether the First Amendment prevents Illinois prosecutors from enforcing the eavesdropping statute against people who openly record police officers performing their official duties in public. More specifically, the American Civil Liberties Union of Illinois ("ACLU") challenges the statute as applied to the organization’s Chicago-area "police accountability program," which includes a plan to openly make audiovisual recordings of police officers performing their duties in public places and speaking at a volume audible to bystanders. Concerned that its videographers would be prosecuted under the eavesdropping statute, the ACLU has not yet implemented the program. Instead, it filed this preenforcement action against Anita Alvarez, the Cook County State’s Attorney, asking for declaratory and injunctive relief barring her from enforcing the statute on these facts. The ACLU moved for a preliminary injunction. The Circuit reverse and remand the district court's dismissal with instructions to allow the amended complaint and enter a preliminary injunction blocking enforcement of the eavesdropping statute as applied to audio recording of the kind alleged here.
Moss v. United States Secret Service, ___ F.3d ___ (9th Cir. No. 10-36152 filed 04/09/12). In a suit stemming from a protest demonstration against President Bush during the 2004 presidential campaign: 1) the district court's ruling denying the defendant Secret Service agents' motion to dismiss a Bivens claim for viewpoint discrimination is affirmed, where the plaintiffs alleged a plausible First Amendment claim, and the agents were not entitled to qualified immunity; but 2) the district court's denial of the defendant police supervisors' motion to dismiss a 42 USC section 1983 claim is reversed, where the plaintiffs did not allege sufficient facts to support a plausible Fourth Amendment claim against the supervisors for use of excessive force.
Perry v. New Hampshire, 556 U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 10-8974, filed 1/11/12). Around 3 a.m. on August 15, 2008, the Nashua, New Hampshire Police Department received a call reporting that an African-American male was trying to break into cars parked in the lot of the caller’s apartment building. When an officer responding to the call asked eyewitness Nubia Blandon to describe the man, Blandon pointed to her kitchen window and said the man she saw breaking into the car was standing in the parking lot, next to a police officer. Petitioner Barion Perry’s arrest followed this identification. Before trial, Perry moved to suppress Blandon’s identification on the ground that admitting it at trial would violate due process. The New Hampshire trial court denied the motion. On appeal, Perry argued that the trial court erred in requiring an initial showing that police arranged a suggestive identification procedure. Suggestive circumstances alone, Perry contended, suffice to require court evaluation of the reliability of an eyewitness identification before allowing it to be presented to the jury. The Supreme Court held the Due Process Clause does not require a preliminary judicial inquiry into the reliability of an eyewitness identification when the identification was not procured under unnecessarily suggestive circumstances arranged by law enforcement. The Constitution protects a defendant against a conviction based on evidence of questionable reliability, not by prohibiting introduction of the evidence, but by affording the defendant means to persuade the jury that the evidence should be discounted as unworthy of credit. Only when evidence "is so extremely unfair that its admission violates fundamental conceptions of justice," Dowling v. United States, 493 U. S. 342 (internal quotation marks omitted), does the Due Process Clause preclude its admission. Given the safeguards generally applicable in criminal trials, the introduction of Blandon’s eyewitness testimony, without a preliminary judicial assessment of its reliability, did not render Perry’s trial fundamentally unfair.
Moncrieffe v. Holder, 568 U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 11-702, filed 04/23/13). Moncrieffe, a Jamaican citizen here legally, was found by police to have 1.3 grams of marijuana in his car. He pleaded guilty under Georgia law to possession of marijuana with intent to distribute. The Federal Government sought to deport him, reasoning that his conviction was an aggravated felony because possession of marijuana with intent to distribute is a CSA offense, 21 U. S. C. §841(a), punishable by up to five years’ imprisonment, §841(b)(1)(D). An immigration judge ordered his removal. The United States Supreme Cour reversed. If a noncitizen's conviction for a marijuana distribution offense fails to establish that the offense involved either remuneration or more than a small amount of marijuana, it is not an aggravated felony under the Immigration and Nationality Act, and the contrary judgment of the Court of Appeals for the Fifth Circuit is reversed and remanded.
Arizona v. United States, 567 U.S. ___, 132 S.Ct. 2492, ___ L.Ed.2d ___ (No. 11-182, filed 06/25/12). In a case assessing the constitutionality of an Arizona statute known as S.B. 1070, which was enacted in 2010 to address pressing issues related to the large number of unlawful aliens in the state, the Ninth Circuit's ruling affirming the district court's issuance of a preliminary injunction preventing four of its provisions from taking effect is: 1) affirmed in part, where Sections 3 (misdemeanor for failure to comply with federal alien-registration), 5(C) (misdemeanor for an unauthorized alien to work), and 6 (authorizes officers to arrest without a warrant a person the officer has probable cause to believe has committed any public offense that makes the person removable from the US) of S.B. 1070 are preempted by federal law; but 2) reversed in part, where it was improper to enjoin section 2(B) (requiring officers conducting a stop, detention, or arrest to make efforts to verify the person's immigration status with the Federal Government) before the state courts had an opportunity to construe it and without some showing that section 2(B)'s enforcement in fact conflicts with federal immigration law and its objectives
Howes v. Fields, 556 U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 10-680, filed 02/21/12). Service of a prison term, without more, is not enough to constitute Miranda custody. Questioning a person who is already in prison does not generally involve the shock that very often accompanies arrest. A prisoner is unlikely to be lured into speaking by a longing for prompt release. And a a prisoner knows that his questioners probably lack authority to affect the duration of his sentence.
United States v. Fricosu, No. 10-cr-00509-REB-02, 2012 WL 182121 (D. Colo. Jan. 23, 2012). Fricosu and her husband are facing bank fraud, wire fraud, and money laundering charges for allegedly seeking to take title to foreclosed homes. Officers seized a laptop believed to contain evidence, but its files are encrypted. The government sought an order requiring Fricosu to supply the encryption key, and Friscosu invoked her Fifth Amendment privilege against self-incrimination. The court then concluded that no testimony was associated with the compelled production of the unencrypted contents of her laptop computer. In reaching this conclusion, the court heavily relied upon a tape recording of a phone call introduced by the Government between Friscosu and another individual, where the defendant admitted, "[The content at issue] was on my laptop." Friscosu later confirmed in the call that the content existed when she was asked, "It was on your laptop[?]," and Friscosu responded, "Yes." Throughout this extensive exchange, Friscosu essentially admitted every testimonial communication that may have been implicit in the production of the unencrypted contents. Cf., In Re Grand Jury Subpoena for John Doe, below.
Alford v. Greene & Camareta v. Greene, 556 U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (Case Nos. 09-1478 & 09-1454, filed 05/26/11). When government officials intend to question a child abuse victim at a school, do they have to show an exception to the warrant requirement? The Ninth Circuit held these interviews were unreasonable seizures in the absence of a warrant, court order or parental consent. The Supreme Court vacated and remanded.
Miller v. Alabama, 565 U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 10-9646, filed 06/25/12). In consolidated petitions for habeas corpus relief, where both petitioners were convicted of murder at the age of 14 and sentenced to a mandatory term of life imprisonment without the possibility of parole, denial of petition is reversed and remanded where the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile homicide offenders.
Knox v. Service Employees International Union, Local 1000, 565 U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 10-1121, filed 6/21/12). The Court called agency shop compulsory fees a "significant impingement on First Amendment rights." On the main issue, the majority (Alito, Roberts, Scalia, Kennedy, and Thomas) had little trouble finding that SEIU should have sent a new Hudson notice for the special assessment. However, the majority opinion went further. It held that a union cannot use figures based on an audit of regular operations to support the calculation of chargeable versus nonchargeable expenses for a special assessment. The Court acknowledged that it is not easy for unions to determine what may be chargeable in advance. However, the Court held that unions must bear the risk of collecting too little—versus employees bearing the risk of paying too much—since the union’s constitutional rights are not at stake. Accordingly, the Court held that when a union imposes a special assessment or dues increase, there must be a new Hudson notice. More significantly, the majority decision delved into whether the First Amendment required an opt-in system versus an opt-out system. After discussing prior precedent, the majority held that nonmembers may only be required to pay expenses if they affirmatively consent (opt-in).
Wisconsin Educ. Ass’n Council v. Walker, 824 F. Supp. 2d 856 (D. Wis. 2012). Court Leaves Intact Most Of Wisconsin’s New Law Eliminating Collective Bargaining. A 2011 Wisconsin bill created two new classifications of public employees: "General" and "public safety." Under the Bill, the State left the rights of public safety employees to unionize and collectively bargain unchanged, while general employees lost most of these rights. A group of unions representing general employees filed a federal court lawsuit challenging three of the changes brought about by the Bill: (1) The elimination of mandatory dues and fair share fees and the stripping of all collective bargaining rights, except on "total base wages"; (2) the apparently-unprecedented requirement for annual recertification by an absolute majority of union members (as opposed to conditional or member-driven recertification by a simple majority of those actually voting); and (3) a prohibition on the voluntary withholding of union dues from a general employee’s paycheck. The Federal Court upheld most of the bill's provisions, finding that the unions could not meet their burden of proof with respect to most of the Bill, and that they could not show that the Bill’s principal provisions limiting the collective bargaining rights of general employees and their unions had no "rational basis." The Court found that "the State, however, has not articulated, and the Court is now satisfied cannot articulate, a rational basis for picking and choosing from among public unions, those (1) that must annually obtain an absolute majority of its voluntary members to remain in existence or (2) that are entitled to voluntary assistance with fundraising by automatic deduction, at least not a rational basis that does not offend the First Amendment."
National Federation of Ind. Business v. Sebelius, 567 U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 11-393 filed 06/28/12). Obamacare's individual mandate is upheld as within Congress’s power under the Taxing Clause.
Patel v. City of Los Angeles, ___ F.3d ___ (9th Cir. No. 08-56567, filed 7/17/12). In a suit brought by motel owners against the City of Los Angeles, challenging the constitutionality of Los Angeles Municipal Code (LAMC) section 41.49, which requires operators of hotels to maintain certain guest registry information and to make the information available to police officers on request, district court's judgment in favor of the city is affirmed as, the plaintiffs failed to show that they themselves or all hotel owners have a reasonable expectation of privacy in their guest registers, and also failed to show that the inspection of the guest registers authorized by the ordinance is an unreasonable intrusion.
Case name unknown, profiled on policeone.com 5/15/2012. The Ohio Supreme Court ruled yesterday that law-enforcement agencies may withhold the identity of police officers who face substantiated threats of injury or death in retaliation for on-the-job actions. The officers' constitutional right to privacy — and personal protection — supersedes Ohio's public-records laws, the justices ruled in the appeal of a case filed by The Cincinnati Enquirer. A police-union president welcomed the ruling, while the newspaper's lawyer said it could inhibit public and news-media review of officers' use of deadly force. The Enquirer had sought the names and identifying information of two police officers who were shot in a 2010 confrontation with members of the Iron Horsemen motorcycle gang at a Cincinnati bar. Cincinnati police refused to release the officers' names, saying they were potential targets for retaliation by the gang because its "national enforcer" was killed in the shootout with officers. The Enquirer received copies of police reports and files with the names of the officers removed, but the paper argued that the redaction of the officers' identities violated public-records laws. The Supreme Court justices relied on a 1998 federal-court ruling involving the Columbus Division of Police to affirm a ruling by Ohio's 1st District Court of Appeals in Cincinnati in The Enquirer's case.
Garcia v. Lardeo, ___ F.3d ___ (5th Cir. No. 11-41118, filed 12/12/12). Garcia, a former police dispatcher, was dismissed after photos and text messages on her cell phone revealed that she was violating police department rules. The employer removed her cell phone from her locker and searched it without her permission. Garcia alleged the search was illegal under the Stored Communications Act (SCA). The 5th Circuit disagreed, holding the act does not protect information stored on personal devices such as cell phones, laptops and personal computers. The SCA (18 U.S.C. § 2701(a)) only protects "facilit[ies] through which an electronic communication service is provided" and not the device that is used to access those communication services, the court explained. The relevant ‘facilities’ that the SCA is designed to protect "are not computers that enable the use of an electronic communication service, but instead are facilities that are operated by electronic communication service providers and used to store and maintain electronic storage." Information that an individual stores to his hard drive or cell phone is not in electronic storage under the statute.
State v. Spagnola, 295Kan. 1098, 289 P.3d 68 (No. 101521, filed 12/07/12). TPD Officer Jones stopped a car for running a stop sign. It drove over the curb when coming to a stop, and Jones saw the driver reach down to his right side while coming to a stop. Thinking the driver might be armed, Jones got him out of the car and asked him if he had any "drugs, knives, guns, needles, "or anything like that." The driver said no, but he said a computer monitor in his back seat might be stolen. Jones asked if he could search the driver's pockets and the driver said yes. Jones found methamphetamine in the driver's pockets. The Court held the consent was not valid because two officers were present and before receiving the second consent, Jones had the driver turn around, place his hands behind his back, and interlace his fingers. The search exceeded the valid scope of a Terry search, and going into the pockets was not the least intrusive means available to dispel the officer's suspicion of a threat.
State v. James, ___ Kan.App.2d ___, ___ P.3d ____ (No. 106083, filed 11/09/12). As part of a search incident to arrest, it is reasonable for a law enforcement officer to inspect the text messages on a cell phone found on an arrestee's person for evidence probative of criminal conduct. Police stopped James for having a headlight out, and smelled the odor of alcohol coming from James. The officer went to speak to the passenger and saw an open container of alcohol behind the driver's seat. The officer then placed James in handcuffs and gave him Miranda warnings. James admitted there were cups containing alcohol in the console, and admitted to drinking while driving. The officer then searched the vehicle and found marijuana and scales in the glovebox. James claimed that his brother had left the marijuana in the vehicle, and urged the officer to call his brother, thrusting his hip forward so the officer could reach in James's pocket and get his cell phone. The officer asked if there were any text messages related to drug sales on the phone, and James said no. The officer looked at the text messages and saw two recent messages, one saying, "U got green I will meet U somewhere," and another saying,"Hey T-Ray this is Cotie. U got a 20?" James claimed the search for texts was unconstitutional. The Court of Appeals rejected the argument, finding it was a valid search incident to a lawful arrest. The Supreme Court reversed. See State v. James, above.
United States v. Magana, ___ F.Supp. ___ (USDC WI No. _____ filed ____________). District Judge William Griesbach ruled that it was reasonable for Drug Enforcement Administration agents to enter rural property without permission -- and without a warrant -- to install multiple "covert digital surveillance cameras" in hopes of uncovering evidence that 30 to 40 marijuana plants were being grown. Two defendants in the case, Manuel Mendoza and Marco Magana of Green Bay, Wis., have been charged with federal drug crimes after DEA agent Steven Curran claimed to have discovered more than 1,000 marijuana plants grown on the property, and face possible life imprisonment and fines of up to $10 million. Mendoza and Magana sought suppression of the video evidence, noting that "No Trespassing" signs were posted throughout the heavily wooded, 22-acre property owned by Magana and that it also had a locked gate. A jury trial has been scheduled for January 22, 2013.
United States v. Skinner, ___ F.3d ___ (6th Cir. No. 09-6497, filed 08/14/12). The government used GPS data emanating from Melvin Skinner’s pay-as-you-go cell phone to determine its real-time location. This information was used to establish Skinner’s location as he transported drugs along public thoroughfares between Arizona and Tennessee. As a result of tracking the cell phone, DEA agents located Skinner and his son at a rest stop near Abilene, Texas, with a motorhome filled with over 1,100 pounds of marijuana. The district court denied Skinner’s motion to suppress all evidence obtained as a result of the search of his vehicle, and Skinner was later convicted of two counts related to drug trafficking and one count of conspiracy to commit money laundering. The convictions must be upheld as there was no Fourth Amendment violation. Skinner did not have a reasonable expectation of privacy in the data emanating from his cell phone that showed its location.
State v. Parker, ___ Kan.App.2d ___, ___ P.3d ____ (No. 105558 filed 08/09/12). Parker raped a 94-year old woman at a hospital, and was still present when police arrived, having been detained by hospital staff. Once handcuffed, a SANE/SART nurse swabbed Parker's hands. He contended the DNA evidence was illegally seized. The Court of Appeals thought otherwise, holding it was a valid warrentless search because there was probable cause combined with exigent circumstances.
State v. Jones, ___ Kan.App.2d ___, ___ P.3d ____ (No. 106605, filed 06/29/12). Detention of the defendant for at least 20-30 minutes to await a drug-sniffing dog was unreasonably prolonged and this alone would justify suppression of the evidence ultimately discovered through use of the K-9 unit, even if the officer had gained reasonable suspicion that the vehicle might contain controlled substances. A Garden City officer stopped the vehicle in early morning hours for erratic driving. The driver had slurred speech and appeared to have cotton mouth, but the officer could not smell the odor of an alcoholic beverage. The officer did not proceed with an investigation for driving under the influence of drugs or alcohol, but rather sought the driver's identification and then asked her to step from the vehicle. When the driver denied the officer permission to search the vehicle, the officer contacted his supervisor, Sergeant Martinez, who arrived approximately 15 minutes, later, then the officers requested a canine, which did not arrive for somewhere between 20 and 40 minutes. Buser dissents, primarily due to the district court's inadequate findings of fact and conclusions of law.
United States v. Neff, ___ F.3d ___ (10th Cir. No. 10-3336, filed ____12). Dennis Dean Neff was transporting 7 kilos of cocaine through the sunflower state when he spied a couple of temporary highway signs indicating that he was quickly approaching a drug checklane. There was no drug checklane, however, a "ruse" drug checklane. DD exited when he saw the sign and turned around. The problem for DD was that officers were watching, and began to follow him. DD had seen the patrol car and appeared "startled." The nearest officer exited his patrol car and stopped DD. Cocaine was found and DD was arrested. DD filed for suppression of the cocaine arguing an unconstitutional stop because the officer lacked reasonable suspicion to believe DD had committed a crime. The 10th Circuit agreed. The panel reminds us that a driver’s decision to use a rural or "dead exit" following drug checkpoint signs is not, standing alone, reasonable suspicion to stop the car. Taking the exit PLUS additional factors are required. Here, DD exiting the highway, his car not being from that county, his not immediately looping back to the highway by using the first driveway, and his being startled when the officer appeared, was insufficient. Even though the U.S. lost, the 10th Circuit held for the first time in our part of the country that ruse lanes are constitutional, and we now know that the above facts do not rise to reasonable suspicion.
State v. Dugan, 47 Kan. App. 2d 582, 588-89, 276 P.3d 819 (2012). Dugan was driving his SUV in Lawrence and rear-ended someone, then drove off. Dispatch relayed his tag number, and an officer spotted him enroute to his residence. She turned on her emergency lights as she pulled into the driveway. Dugan started shutting the garage door. The officer stuck her foot in the door and stopped its progress, then entered the garage and confronted Dugan. Dugan was drunk and admitted being involved in the accident. The Douglas County District Court denied Dugan's motion to suppress evidence. The Court of Appeals reversed, finding insufficient evidence of hot pursuit or exigent circumstances. "[W]e do not share the district court's tolerance for the governmental breach of a private residence and, therefore, reverse that ruling with directions the motion be granted." "A citizen's Fourth Amendment rights do not rise or fall on the schedules of government agents or their predilections for expediency. The framers intended judicially issued warrants as a check on just those inclinations and to preserve for the citizenry a sphere of privacy in their own homes against undue government intrusion. The Fourth Amendment has not yet fallen into such disrepair that it no longer serves that fundamental purpose in a case such as this."
State v. Sanchez-Loredo, ___ Kan. ___, ___ P.3d ___ (No. 101912, filed 03/23/12), affirming 42 Kan.App.2d 1023, 220 P.3d 374 (2009). 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. The Supreme Court affirmed. In doing so it mentioned that some states have chosen to grant greater rights under their own state constitutions and have rejected the Labron/Dyson rationale, but noted that Sanchez-Loredo made no argument under the Kansas Constitution.
Hatcher v. State, A11A2416, 2012 Ga. App. LEXIS 288 (3/15/12). An investigator with the Cherokee County Sheriff's Office learned that someone was using a computer in Cherokee County to share child pornography on the Internet. The investigator ascertained that the Internet Protocol (IP) address used by the child pornographer was assigned to a customer of Comcast Cable Communications, an internet service provider, and the investigator asked Comcast to provide certain information about the account of that customer. The detective obtained a search warrant for the information and faxed a copy to Comcast in New Jersey. Comcast complied, disclosing the name of the customer and her billing address, which was a residential address in Cherokee County. The investigator obtained a warrant to search the residence at the billing address for certain evidence of child pornography, including any computers or electronic data storage devices that he might find there. When the investigator went to the home, he confirmed that it was occupied by a family that subscribed to Comcast internet service. The investigator learned that the family used a wireless router to access the Internet, and he also discovered that Hatcher lived in the basement of the home and used the same wireless router. The investigator interviewed Hatcher, and another officer examined his computer and found files that appeared to contain child pornography. A subsequent forensic examination of the computer revealed numerous files containing child pornography. Hatcher was arrested and filed a motion to suppress arguing that the subscriber information obtained from Comcast was obtained in violation of Fourth Amendment and as such all evidence derived from that information should be suppressed. The trial court denied Hatcher's motion and he appealed to the Court of Appeals of Georgia. The Court held there was no expectation of privacy based on Smith v. Maryland, 442 U.S. 735, 743-744 (1979) (no legitimate expectation of privacy in information he voluntarily turns over to third parties). The court also noted that Hatcher was not the person who subscribed with Comcast for the account on which he accessed the internet. Rather, Hatcher lived in the basement of the actual subscriber for about two months and accessed the internet via the homeowner's wireless router. The court stated that the record on appeal did not state what his relation was with actual subscriber and whether he was a renter or a guest. In light of this significant fact, the court then stated that even if a subscriber might have a reasonable expectation of privacy in her own account information, a mere user of the account would not have a reasonable expectation of privacy in it, especially in the absence of some special relationship between that person and the subscriber. See also United States v. Perrine, 518 F3d 1196, 1204 (I) (10th Cir. 2008) ("Every federal court to address this issue has held that subscriber information provided to an internet provider is not protected by the Fourth Amendment's privacy expectation.").
Clark v. City of San Antonio, No. 11-50010, 2012 U.S. App. LEXIS 4978 (5th Cir. 03/09/12). A confidential informant told police he he had purchased methamphetamine from a man named "Randy" at a home in Leon Valley, San Antonio. The informant further told police Randy was allowing others to "cook" methamphetamine at the same house. Police obtained a warrant and, after obtaining approval from supervisors, served the warrant in a no-knock fashion at 9:40 p.m. They did not find any drugs, but found two females, one nude, in the residence. The raid lasted a total of approximately an hour and 45 minutes. The two ladies sued, claiming a Fourth Amendment violation. The district court granted all defendants summary judgment. The Fifth Circuit reversed, finding enough evidence to establish a city policy to serve all narcotics warrants in a no-knock fashion. "[T]he presence of retail quantities of an easily disposable drug is legally insufficient, without more, to constitute the type of exigency needed to justify a no-knock entry. Richards, Banks, and Cantu all involved searches similarly based on information that drugs were being dealt from the house in question." "Under these circumstances, the disposable nature of methamphetamine was not enough to create exigent circumstances justifying a no-knock entry." "Taken together, the deposition testimony of McManus, Ortiz, Arcuri, and Laurenz, and the City's admission that the search of Appellants' home was conducted in accordance with SAPD policies, are sufficient to create a genuine issue of material fact on the issue of municipal liability."
In Re Grand Jury Subpoena for John Doe, ___ F.3d ___ (11th Cir. Nos. 11-12268 & 11-15421, filed 02/23/12). Officers suspected Doe of downloading child pornography and served a warrant on his hotel room, seizing a laptop and five hard drives, some of which had encrypted portions. The U.S. attorney subpoenaed the unencrypted contents and granted Doe imminuty solely for the act of decryption and production, but reserved deriviative use of any evidence on the drives. Doe refused and the trial judge held him in contempt. The Circuit reversed. It held that Doe’s decryption and production of the hard drives’ contents would trigger Fifth Amendment protection because it would be testimonial, and that such protection would extend to the Government’s use of the drives’ contents. The district court therefore erred in two respects. First, it erred in concluding that Doe’s act of decryption and production would not constitute testimony. Second, in granting Doe immunity, it erred in limiting his immunity, under 18 U.S.C. §§ 6002 and 6003, to the Government’s use of his act of decryption and production, but allowing the Government derivative use of the evidence such act disclosed. Doe would certainly use the contents of his mind to incriminate himself or lead the Government to evidence that would incriminate him if he complied with the district court’s order. Moreover, the Government has failed to show any basis, let alone shown a basis with reasonable particularity, for its belief that encrypted files exist on the drives, that Doe has access to those files, or that he is capable of decrypting the files. The "foregone conclusion" doctrine does not apply under these facts. And the offer of use of production immunity is insufficient to compel production. Immunity coextensive with the Fifth Amendment requires both use and derivative-use immunity.
State v. Adams, ___ Kan. ___, ___ P.3d ___ (No. 101392 filed //12). The Protection, Kansas, police chief stopped a car after it ran a stop sign. The chief noted signs of intoxication and asked the driver if she was impaired. She admitted drinking alcohol and smoking methamphetamine. The chief searched her purse and found a list of meth-making items. The driver said some of those items were at the home she shared with Adams. The police obtained a warrant and searched the home, finding a meth lab. Adams argued the evidence recovered in the home should be suppressed because the deputy that swore to the affidavit in support misrepresented his training, experience, and knowledge regarding the production of controlled substances. The cour started with the familiar rule from Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978) that an affidavit in support of a search warrant is presumed valid, and in most cases, the facts contained therein may not be disputed by the party against whom the warrant is directed. It held that even without the challenged portion the affidavit established probable cause so the motion to suppress was properly denied.
Florence v. Board of Chosen Freeholders, 556 U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 10-945, filed 04/02/12). The Fourth Amendment permits a jail to conduct a suspicionless "strip search" of every individual arrested for any minor offense no matter what the circumstances. Petitioner Albert Florence was arrested on an outdated bench warrant for a non-indictable offense and was subjected to "strip searches" in two separate prison facilities. Florence sued both facilities, alleging that their blanket policies of strip searching all detainees, regardless of their offense, violates the Fourth Amendment. The district court held for Florence, stating that jail officials must show reasonable suspicion to believe minor offenders are some threat to jail security before "strip searching" them. The United States Court of Appeals for the Third Circuit reversed. The Supreme Court agreed with the Third Circuit, holding that where prisoners will be assigned to the general population, the type of search conducted in this case did not violate the Fourth Amendment.
State v. Preston, ___ Kan. ___, ___ P.3d ___ (No. 98629, filed 03/23/12, reversing 41 Kan.App.2d 981, 207 P.3d 1081 (2009)). Court reverses Judge Davis's denial of a motion to suppress on a car stop. Lenexa officers went to OPR after the suspect in a aggravated battery dropped off the victim and then left on foot. As officers approached the area, dispatch advised the suspect may now be in a Cadillac Suburban or Oldsmobile vehicle. The officer saw a black male and black female in a white Cadillac and stopped the vehicle for failure to signal at least 100' before a lane change. Driver said he was going to visit relatives, but could not provide any more detail. The officer was advised the driver was on federal supervision for drug crimes. The passenger owned the car, but deferred to the driver on whether the officer could search the car. The officer said the driver's cell phone was ringing "a lot." The officer saw a box of Cigarillos in the car, and suspected they were used to make blunts. He patted the driver down (with consent) and found $2500 cash in small bills. The driver said he had been unemployed the last six months. The officer searched the car for weapons and noticed the smell of marijuana. He then had a canine search the car and found marijuana and cocaine in a rear passenger ashtray. The court held the stop was okay even if pretextual, saying K.S.A. 8-1548 is a strict liability offense and no other cars need be present. Preston's objection to the pat-down was not preserved, but even if it was it was justified by the nature of the call and the suspect's history. The driver had standing to object to the searches, but the court held they were both reasonable. The weapon search was justified by the nature of the call and the second search was based on probable cause supplied by the odor. The court declined to extend Doyle to cover admission of testimony about the driver's refusal of consent. The court also upheld the admission of prior drug history to show knowledge and intent, and a proper limiting instruction was given. The Court of Appeals affirmed the conviction. The Supreme Court reversed, holding that 60-455 evidence was improperly admitted and the error was not harmless. Where a defendant denies possessing the drugs, their intent is irrelevant.
State v. Wendler, ___ Kan.App.2d ___, ___ P.3d ____ (No. 104469, filed 03/23/12). The district court appropriately suppressed evidence from an RV when the purpose of the traffic stop was concluded nine minutes into the stop, but consent occurred much later. Topeka officer Youse stopped an RV on I-70 for following too closely. The driver produced ID and said he was driving the rented RV from CA to FL. Youse smelled a strong odor of air freshner coming from the RV. Upon Youse's second approach to the RV, he discovered some prior criminal history - now 18 minutes into the stop. Youse closed the stop after about 25 minutes and then performed a Colombo pivot and obtained consent to search the RV. Youse found 20 packages of marijuana packed around the microwave about 46 minutes into the stop. The district court held the initial stop was supported by reasonable suspicion, but that Youse illegally extended the detention beyond that normally required for a traffic stop, and that further detention was not supported by reasonable suspicion. The Court of Appeals agreed.
Terrell v. Smith, 2012 U.S. App. LEXIS 1689 (11th Cir. Decided January 30, 2012). Before stating the facts of the case, it is important to note, that when considering a motion for qualified immunity, the court is required to view the facts in the light most favorable to the non-moving party (here, the plaintiff's version of events). Therefore, the facts presented here are those stated by Mr. Fazio, a friend of the decedent, Aaron Zylstra, who was present during the incident. The personal representative of Zylstra's estate, Terrell, is the plaintiff in this case. As such, the facts presented here may be in dispute and may not fully represent what actually happened during the incident. Before stating the facts, it is important to note that Zylstra and Fazio had been drinking heavily together the night of the incident. Zylstra had driven both to the location where the shooting occurred for the purpose of smoking crack cocaine. That said, the facts, viewed most favorably to the plaintiff, are as follows:
Fazio recounted that the two police officers at the scene directed him and Zylstra to exit their vehicle and kneel down behind Zylstra's car while holding their hands above their heads. Fazio said that he knelt immediately behind and slightly to the side of the vehicle. Each officer approached the car from a different side with his weapon drawn. One of the officers remained in front of Fazio, while the other walked towards the driver's side of the vehicle. Although Fazio was compliant with the officers' commands, Zylstra acted as if he were going to kneel down, but instead he turned and jumped back into the vehicle. Officer Smith ran after Zylstra and managed to place himself in the open doorway of Zylstra's car, an area that the parties call "the V," as Zylstra attempted to make a U-turn in Smith's direction. Smith continued to run in the V alongside the vehicle as it moved forward, repeatedly warning Zylstra to stop the car. The vehicle's door and frame struck Smith's body as Zylstra attempted to turn the vehicle. Fazio testified that "the under part of the open part of the door was hitting [Smith], kind of pushing him back." After multiple warnings, Smith fired two shots, killing Zylstra.
Zylstra's estate filed suit and claimed that Smith's use of deadly force constituted excessive force under the Fourth Amendment. Officer Smith filed a motion for summary judgment on the basis of qualified immunity. The district court denied the motion and Smith appealed to the Eleventh Circuit Court of Appeals. The Circuit held that by failing to stop, Zystra was committing a violation of a Florida statute that makes it a third degree felony to fail to stop his vehicle in accordance with the officer's order. Further, the court noted that the officer is under no duty to retreat or abandon his effort to effect an arrest simply because the felony suspect was not being compliant. The court further noted that both Officer Smith and Fazio both testified that Zystra refused to stop his moving car, and actually struck the officer. In light of this fact, the court noted that they have previously held similar uses of deadly force against drivers of vehicles to be constitutionally reasonable under the Fourth Amendment. Further, the court noted that in addition to the threat to Officer Smith, there was also "an immediate and foreseeable risk" to the other officer present and Fazio, as they were also in close proximity. The court held that Officer Smith acted reasonably within the Fourth Amendment when he shot Zystra. Specifically, the court stated:
"Officer Smith was forced to make a split-second decision concerning whether the use of lethal force was necessary. Beyond himself, two other people were within a few feet of the moving vehicle as these rapidly unfolding and uncontrolled events transpired. " Even if in hindsight the facts show that [the officer] perhaps could have escaped unharmed," . . . an objectively reasonable law enforcement officer could well have perceived that the moving vehicle was being used as a deadly weapon, especially after the driver had been repeatedly ordered to stop. In short, Smith was attempting to make an arrest that he had the legal right to make while standing in a position where he was legally entitled to be. Zylstra refused to heed Smith's commands to stop the vehicle and turned the car "in a dangerous and aggressive manner which provided the officers with probable cause to believe that [Zylstra] . . . posed a threat of serious physical harm or death to the officers, or other passersby, especially in light of the speed with which the incident unfolded." . . . The use of lethal force was objectively reasonable under the Fourth Amendment."
Although the court was not required to do so, they also analyzed whether there was any "clearly established" law that would have put Officer Smith on notice that shooting Zystra would have been unreasonable under the Fourth Amendment. Noting that this "clearly established law" must come from the U.S. Supreme Court, the Eleventh Circuit Court of Appeals or the Supreme Court of Florida, the court concluded that the law was not clearly established that Officer Smith acted unreasonably when he shot Zystra. The Circuit reversed the district court's denial of qualified immunity for Officer Smith. It held (1) that the officer acted in an objectively reasonable manner under the Fourth Amendment when he shot Zystra and (2) even if the officer had not been reasonable under the Fourth Amendment, the law was not clearly established; therefore, the officer would still be entitled to qualified immunity.
State v. Johnson, ___ Kan. ___, ___ P.3d ___ (No. 100728, filed 03/02/12), affirming 42 Kan. App. 2d 799, 217 P.3d 42 (2009). 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. The Supreme Court affirmed.
Ryburn v. Huff, 565 U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 11-208, filed 01/23/12). Burbank officers were investigating a threat that a student was going to "shoot up" the school. Officers learned that Vincent Huff had been absent from school for two days and that he was frequently subjected to bullying. The officers went to Vincent's house to interview him. They got no answer, and no one would answer the phone, but Ms. Huff answered her cell phone and states that her and Vincent were in the house. When officers asked them to open the door, Mrs. Huff hung up on them. Her and Vincent came out a few minutes later, and officers asked to speak inside. Ms. Huff refused. Officers asked about guns in the house, and Ms. Huff turned and ran towards the house. Officers obviously followed them in. The officers remained inside the house for a total of 5 to 10 minutes. During that time, the officers talked to Mr. Huff and Vincent. They did not conduct any search of Mr. Huff, Mrs. Huff, or Vincent, or any of their property. The officers ultimately concluded that the rumor about Vincent was false, and they reported their conclusion to the school. Huffs sued, claiming the entry violated their Fourth Amendment rights. The District Court entered a judgment in favor of the officers by granting them qualified immunity. A divided panel of the Ninth Circuit held that the two officers that entered the house last (the ones that believed they had consent) were entitled to qualified immunity. However, they reversed the grant of qualified immunity for Officer's Ryburn and Zepeda holding that "any belief that the officers or other family members were in serious, imminent harm would have been objectively unreasonable" since Mrs. Huff "merely asserted her right to end her conversation with the officers and returned to her home." The Supreme Court reversed, holding the situation presented exigent circumstances for the entry. In rejecting the Ninth's circuit's reasoning, the court said, "the panel majority did not heed the District Court's wise admonition that judges should be cautious about second-guessing a police officer's assessment, made on the scene, of the danger presented by a particular situation. With the benefit of hindsight and calm deliberation, the panel majority concluded that it was unreasonable for petitioners to fear that violence was imminent. But we have instructed that reasonableness "must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight" and that "[t]he calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments--in circumstances that are tense, uncertain, and rapidly evolving." Graham v. Connor, 490 U. S. 386, 396-397 (1989). Judged from the proper perspective of a reasonable officer forced to make a split-second decision in response to a rapidly unfolding chain of events that culminated with Mrs. Huff turning and running into the house after refusing to answer a question about guns, petitioners' belief that entry was necessary to avoid injury to themselves or others was imminently reasonable."
State v. Butts, ___ Kan.App.2d ___, ___ P.3d ____ (No. 104817, filed 01/20/12). A KCK officer stopped Butts's car for speeding. The officer testified the car was going about 45 miles per hour in a 30-mile-per-hour speed zone. The officer's speed determination was an estimate based upon his observations, training, and experience with radar and speed detection. His visual estimation was not confirmed by any speed measurement device, stopwatch, or pacing of the vehicle by the officer. After turning on the vehicle, the officer saw it swerving within its own lane of traffic for about 4 blocks. The officer stopped the car due to a concern the driver might be drunk. The officer noted usual indicators of intoxication. A breath test showed Butts driver at 0.141, and he had crack in his pocket. Butts alleged there was no reasonable suspicion for the stop. The Court of Appeals disagreed. "We conclude that a law enforcement officer's observation of a moving vehicle which results in the officer's estimation that the vehicle is moving in excess of the posted speed limit may constitute, under the totality of the circumstances, reasonable suspicion that the driver is speeding in violation of law."
United States v. Jones, 565 U.S. ___, 132 S. Ct. 945, ___ L.Ed.3d ___ (No. 10-1259, filed 01/23/12). Jones was a suspect in a drug distribution scheme. Police obtained a warrant allowing installation of a GPS tracker on his car, but did not install it within 10 days within the District of Columbia as required by the warrant. In any event, the police installed the device while Jones's car was sitting in a public parking lot, and monitored his whereabouts for 28 days. The D.C. Circuit suppressed the evidence, holding that a warrant is required if there is a physical trespass to an "effect." The Supreme Court agreed. It held that the Katz expectation of privacy approach supplemented, not displaced, the Fourth Amendment test of physical intrusion onto a constitutionally protected area. Since there was such a trespass, a warrantless Fourth Amendment search occurred. It distinguished prior beeper cases because they involved placement of the device with consent before the suspect acquired them. The Court went on to hold that the government's argument that tracking Jones for 28 days was a reasonable search was forfeited because it had not been presented below. Justice Alito, concurring, called the judgment "unwise." He stated the decision "strains the language of the Fourth Amendment; it has little if any support in current Fourth Amendment case law; and it is highly artificial." ___ U.S. at ___, Alito, J. concurring.
Dorsey v. United States, 565 U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 11-5683, filed 06/21/2012 ). In a sentence appeal involving the applicability of the Fair Sentencing Act (Act), which took effect on August 3, 2010 and reduced the disparity between the amounts of crack cocaine and powder cocaine needed to trigger mandatory minimum prison terms, the Seventh Circuit's decision affirming a 2010 sentence for unlawfully selling crack in 2008 that did not apply the Act is vacated where the Act's new, lower mandatory minimums apply to the post-Act sentencing of pre-Act offenders.
Southern Union Co. v. United States, 565 U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 11-94, filed 06/21/2012). In a case involving a criminal fine for conviction of violating the Resource Conservation and Recovery Act of 1976 (RCRA) for having knowingly stored liquid mercury without a permit at a subsidiary's facility, the First Circuit's ruling upholding the fine because it held that Apprendi v. New Jersey, 530 U. S. 466, does not apply to criminal fines, is reversed, as the rule of Apprendi applies to the imposition of criminal fines.
State v. Teter, ___ Kan.App.2d ___, ___ P.3d ____ (No. 105495, filed 5/11/12). Kevin Teter appeals his conviction of one count of unlawful acquisition of pseudoephedrine in violation of K.S.A. 2007 Supp. 65-7006(d) (now codified at K.S.A. 2011 Supp. 21-5709[d]). This statute makes it unlawful for any person to purchase more than 3.6 grams of pseudoephedrine base or ephedrine base in any transaction or to purchase more than 9 grams of pseudoephedrine base or ephedrine base within a 30-day period. Teter argues that the statute is unconstitutionally vague and overbroad. Teter's constitutional challenges are rejected and the court concludes that the statute is rationally related to the legitimate interest of preventing the manufacture of methamphetamine in Kansas.
City of Lincoln Center v. Farmway CO-OP Inc., 47 Kan.App.2d 335, 274 P.3d 680 (2012), aff'd in part, reversed in part, ___ Kan. ___ (2013). Farmway expanded its grain drying facilities and neighbors complained about the noise and dust generated by the facility. Farmway was convicted of noise and nuisance violations and appealed. It filed a motion to dismiss alleging the noise ordinance was unconstitutionally vague because it failed to incorporate a reasonable person standard. The Court of Appeals agreed. A city noise ordinance that makes it illegal to "make, continue, maintain or cause to be made or continue any excessive unnecessary, unreasonable or unusually loud noise which either annoys, disrupts, injures or endangers the comfort, repose, health, peace or safety of others within the City," is too vague to be enforced. The ordinance does not give fair warning to those potentially subject to its reach because there are no objective standards imparted. Just as it was the case in Luna, the Lincoln ordinance contains "[l]oaded phrases and words." 28 Kan. App. 2d at 416. The difference here is that the Lincoln ordinance contains more of these "[l]oaded phrases and words." In substance, the Lincoln ordinance and the ordinance in Luna are really no different. The inclusion of the word "unreasonable" in the Lincoln ordinance does not cure its vagueness. Additionally, its public nuisance ordinances, based on UPOC 9.5 and 9.6, are also too vague to be enforced. The prohibited conduct under the Lincoln nuisance ordinances criminalizes any conduct "which injures or endangers the public health, safety or welfare." This ordinance does not give fair warning to those persons potentially subject to it as to what conduct is criminalized. The district court stated the ordinance is "so vague and indefinite that it fails to warn." Further, the ordinance does not adequately guard against arbitrary and discriminatory enforcement. This appears to be apparent through the evidence, or lack thereof, that Farmway has ever been out of compliance with regulatory standards for dust and industrial noise under State and Federal standards
January 1, 2011 through December 31, 2011 (or thereabouts)
Albright v. State, ___ Kan. ___, ___ P.3d ___ (No. 102454, filed 05/20/11). K.S.A. 60-1507 movants who have counsel are entitled to the effective assistance of that counsel, and if counsel's performance was deficient for failure to file a timely appeal, as a remedy a 60-1507 movant should be allowed to file an out-of-time appeal pursuant to State v. Ortiz.
State v. Thompson, ___ Kan.App.2d ___, ___ P.3d ____ (No. 103633, filed 03/11/11). A defendant tried before a district judge (due to the magistrate's illness) but sentenced by a magistrate still has a right to appeal to district court and request a jury trial.
Thomas Russell III et al. v. City of Chicago, Case No. 10 C 525 (N.D.Ill., August 18, 2011). A federal jury awarded a family $333,000 after a Chicago police officer shot and killed the family’s nine-year-old Labrador retriever. To add insult to injury, the jury awarded $2,000 in punitive damages against the officer who shot the dog, and $1,000 in punitive damages against the supervisor who made the decision to arrest one of the plaintiffs.
Henry v. Storey, ___ F.3d ___ (10th Cir. No. 10-2211, filed 10/03/11). Albuquerque officer Storey saw Henry driving a rental vehicle around midnight and ran his tag. The tag was reported as stolen. Storey stopped the car and officers conducted a felony car stop, including pointing their guns at Henry, ordering him back to the police vehicle, and handcuffing him. When officers found out the vehicle was erroneously reported as stolen, they released Henry. Henry sued, alleging the stop was the result of racial profiling and officers used excessive force. A jury found for the defendants. Henry appealed, claiming the force was excessive because there was no evidence the rental vehicle was taken by force, and Officer Storey only ran his tag because he was black. The Circuit rejected Henry's claims. It held that pointing your gun at someone is not excessive force if the facts justify it, and here they did. It distinguished prior gun-pointing cases Cortez v. McCauley, 478 F.3d 1108 (10th Cir. 2007), United States v. Neff, 300 F.3d 1217 (10th Cir. 2002), and Lundstrom v. Romero, 616 F.3d 1108 (10th Cir. 2010), as not on point. It also found no personal participation on the racial profiling claim, because Storey was granted judgment as a matter of law on this claim and there was no evidence that the officer remaining on this claim ran his tag.
Brooks v. Seattle and Mattos v. Agarano, ___ F.3d ___ (9th Cir. filed 10/17/2011, 2011 U.S. App. LEXIS 20957 (9th Cir.2011), pet. for writ of cert. filed per 2/13/12 article on policeone.com). In these consolidated en banc decisions, the Ninth Circuit found that the actions of the officers in both cases were unconstitutional, but then gave the officers qualified immunity. Brooks involved the car stop of a woman who was 7 months pregnant. When Brooks, the female, refused to sign the citation she was told she was under arrest however she resisted the officers' attempt to take her into custody. The officers ended up using the TASER®, in the drive-stun mode three times to achieve custody. In Mattos, officers used the TASER® in dart mode, allegedly without warning, on a purported female domestic violence victim who was questioning why officers were attempting to arrest her husband inside their residence. The woman pushed away from the officer, allegedly because he was smashing against her breasts in an attempt to get to her husband. She was charged with obstruction. The Circuit determined the intermediate use of force in the form of the Taser was excessive in both cases based on Graham v. Connor factors.
Lucas v. City of Oakland, Case No. Unknown (Profiled in San Francisco Chronicle, C-3, 11/8/11). A former Oakland police officer must pay $40,000 out of his own pocket to two men who were illegally strip-searched in public and have already been awarded at least $100,000 apiece in damages. Spencer Troy Lucas and Kirby Bradshaw had their pants pulled down on a busy West Oakland street in 2005 by police after then-Officer Ingo Mayer stopped them for no lawful reason, U.S. District Judge Marilyn Hall Patel wrote in an August ruling after a bench trial. In the ruling, the judge ordered the city to pay $105,000 in compensatory damages to Lucas and $100,000 to Bradshaw. On Friday, the judge ordered Mayer to pay $25,000 to Lucas and $15,000 to Bradshaw. "She thought it was important to send a message to penalize this officer for his flagrant violation of constitutional rights," the men's attorney, Michael Haddad, said Monday. Mayer retired on disability as a result of the trial, the judge said. Lucas and Bradshaw testified "to their humiliation and feelings of degradation as a result of this public spectacle, as well as the subsequent recurrent memories of feeling terrorized," Patel wrote. Lucas was driving a Cadillac when he and Bradshaw were pulled over by Mayer at 32nd Street and Martin Luther King Jr. Way in West Oakland on Dec. 15, 2005. Mayer testified that he had stopped the car for a traffic violation but could not provide a reason for having done so, Patel said. Mayer handcuffed Lucas and undid his belt buckle, causing Lucas' pants to fall to his ankles, Patel wrote. Then the officer asked Lucas if he had any drugs in his buttocks, pulled his boxer shorts halfway down and shook them against his genitals as a crowd gathered to watch, the judge wrote. Another officer similarly searched Bradshaw at Mayer's direction, Bradshaw testified. City officials had no immediate comment Monday.
Case Name and Number Unknown. Reported on the Secret List 11/08/11. A Monmouth County (New Jersey) court held a fire department 60% responsible and the electric power company 40% responsible for injuries suffered when a man stepped on a downed 7200 volt electric line in his home driveway. The damage award was $20.5M. The court determined that the fire department departed the scene without taking sufficient action to prevent the accident. The jury awarded the $20.5 million in damages Friday after the man lost an arm and a leg in 2007 after stepping on those live electrical wires that had fallen on his driveway during a storm. The man was awarded $18.5 million and his wife, Patricia, was awarded $2 million. A jury deliberated more than 5 hours last week before they returned the unanimous verdict that found Jersey Central Power & Light Co. 40 percent responsible for the injuries and the Northside Engine Company, a fire company in Tinton Falls, 60 percent responsible. The verdict amount was to cover medical costs, disability, deformity, physical suffering and the cost of prosthetic devices which have to be changed every three to five years.
Rucker v. City of Pittsburgh, Case No. Unknown - Profiled on PoliceOne.com on 10/19/11). The Pittsburgh City Council has approved paying $62,000 to cover the attorney fees of a man who won just $269 when a federal court jury found officers were wrong to use a stun gun on him. The jury delivered that verdict two months ago, saying 29-year-old Robert Rucker of Penn Hills was entitled to reimbursement for his medical bill but not $75,000 or more in other damages he was seeking. Rucker says he was complying with police orders when an officer used the stun gun on him in 2006. Police suspected he hit his girlfriend with his car, but Rucker says she jumped on it during a fight and fell off. Tuesday's council vote settles a claim by Rucker's attorneys, who wanted $92,000 in fees for winning the case.
Chelf v. State, ___ Kan.App.2d ___, ___ P.3d ____ (No. 103450, filed 09/23/11). An inmate was injured and attempted to sue the state, but didn't comply with the Institution's 10-day notice requirement, saying he didn't know about it. The Court of Appeals applied the familiar maxim: "[i]gnorance of the law excuses no one; not because courts assume everyone knows the law, but because this excuse is one all will plead and no one can refute." Dezaio v. Port Authority of NY and NJ, 205 F.3d 62, 64 (2d Cir. 2000); see also State ex rel. Murray v. Palmgren, 231 Kan. 524, 536, 646 P.2d 1091 (1982) ("'Ignorance of the law is no excuse.'"); Flott v. Wenger Mixer Manufacturing Co., 189 Kan. 80, 88, 367 P.2d 44 (1961) (stating that parties in litigation are presumed to know the law).
California v. Stenroos, Case No. Unknown (Profiled in Police Magazine, September 13, 2011). A Los Angeles School Police officer who faked his own shooting and triggered a massive, costly police manhunt in the San Fernando Valley has been found guilty. Jeff Stenroos, 31, was convicted of five of the six counts against him in a non-jury trial, including planting false evidence, insurance fraud, giving false evidence, workers compensation fraud and a misdemeanor count of making a false report of an emergency. He could face a sixth count from Van Nuys Superior Court Judge Richard N. Kirschner for filing a false police report. Stenroos faces up to five years in prison at a Dec. 14 sentencing. Also, city officials are seeking more than $350,000 in restitution from Stenroos to cover the costs of the Jan. 19 dragnet, and the school district is seeking $58,000 in medical costs. Stenroos initially claimed he was shot and then later told officers he had accidentally fired his weapon. Los Angeles Police detectives eventually unravelled the story when ballistics tests didn't support his version of the story.
In Re Estate of Belden v. Brown County, Kansas, ___ Kan.App.2d ___, ___ P.3d ____ (No.104,246 filed 08/26/11). Plaintiff filed suit in federal court after her son, Jeffrey Ray Belden, committed suicide while an inmate in the Brown county jail. Plaintiff refiled her state claims in state court. The district court granted summary judgment to defendants on plaintiff's claims of negligence, negligent hiring/training/supervision, and inadequate policies and procedures. The Kansas Court of Appeals affirmed summary judgment on the negligent hiring/training/supervision claim and the policies and procedures claim, but it reversed and remanded the negligence claims for trial. The court defined the scope of duty to an inmate according to Restatement (Second) of Torts 314A. The court said jails stand in a special relationship to the persons they detain and have a duty to take reasonable action to protect them against unreasonable risk of physical harm, even harm done to themselves. The court said the reasonableness standard is flexible and differs among institutions, noting that what is reasonable in the Brown County jail may not be reasonable elsewhere. The court next considered whether there was a fact question about the existence of a breach of duty or causation. The Court of Appeals held that the facts viewed in the light most favorable to the plaintiff could allow a jury to return a verdict for the plaintiff. The court highlighted the following facts:
• Belden was in a cell in the general population. After exhibiting belligerent behavior during the day, he covered the window of his cell with paper. After unsuccessfully ordering Belden to remove the paper, the deputy called his supervisor, the jail administrator, at home and was told to wait for a second officer, then enter the cell, remove the paper, and transfer Belden to a close observation cell
• Jail policy prohibited obscuring cell windows. The court stated that the self-evident purpose behind the policy was to prevent inmates from avoiding observation while undertaking something dangerous, nefarious, or even self-destructive
• The jail administrator testified that an obstruction of a cell window should be removed "as soon as possible" although doing so requires two officers for safety reasons
• Jail policy provided that those in the general population be observed once an hour but that inmates in the close observation cell be observed every 15 minutes because persons at immediate risk of harm were to be placed there
• The jail experienced either a suicidal inmate or an inmate demonstrating a suicide risk every 2 ½ to 3 ½ weeks, making it a fairly common event
• The jailer waited about 1 ½ hours after being instructed to remove Belden from his cell to attempt to do so.
• Given that the deputy was instructed to move Belden to a cell requiring observation every 15 minutes, the deputy should have monitored Belden as frequently while he remained in the regular cell but did not do so
Of perhaps greater significance is the Court of Appeals' conclusion about the potential liability of the jail administrator. The court held a jury could conclude that the administrator was "insufficiently emphatic and explicit in giving direction" to the deputy in light of circumstances and "made no effort" to follow up with the deputy to assure his directive had been addressed. The court said the jail administrator should have given the deputy "a direct order-in those words-to get Belden out of the situation in which he had placed himself."
Glik v. Cunniffe,, ___ F.3d___ (1st Cir. No. 10-1764, filed 08/26/11). Arresting someone for filming the police is a constitutional violation, a Federal Appeals Court has ruled. The case began when Simon Glik was taken into police custody for recording an arrest with his cell phone camera, according to Tech Dirt. Glik told police he saw an officer punch the suspect and believed their use of force was excessive, sources say. Officers reportedly asked him to stop recording because audio recording — a capability of Glik’s phone — violated Massachusetts wiretap laws. Glik was charged with disturbing the peace and aiding in the escape of a prisoner — charges that were later dropped — but he sued the officers who arrested him and the City of Boston for failing to investigate the case further. His First and Fourth Amendment rights were violated, he said. The police officers filed for qualified immunity, which is designed to protect them against frivolous charges, but the district court ruled in Glik’s favor, unequivocally stating that recording police in public is protected under the First Amendment.
"A citizen’s right to film government officials, including law enforcement officers, in the discharge of their duties in a public space is a basic, vital, and well-established liberty safeguarded by the First Amendment."
The court also ruled that the use of Massachusetts wiretapping laws to arrest Glik was a violation of his Fourth Amendment rights. The court stated, "The fact that the officers were unhappy they were being recorded during an arrest . . . does not make a lawful exercise of a First Amendment right a crime." See also Robinson v. Fetterman, 378 F. Supp. 2d 534 (E.D. Pa,. 2005); Kelly v. Borough of Carlisle, 622 F. 3d 248 (3d Cir, 2010); Bowens v. Ary, Inc., 794 N.W. 2d 842 (Mich Sup Ct, 2011).
Walker v. Davis, ___ F.3d ___ (6th Cir. No. 09-5949, filed 08/22/2011). A police officer who "intentionally" rammed a speeding motorcyclist was not entitled to qualified immunity in civil litigation resulting from the incident because he had clearly violated the motorcyclist's constitutional rights. Thomas Germany was killed in 2008 while riding a motorcycle across an empty field after a low-speed police chase, when Deputy Sheriff Danny Davis rammed the motorcycle that he was riding. Germany was thrown from the motorcycle and dragged underneath the cruiser, crushing him to death. Shortly before the incident, a police officer had clocked Germany riding his motorcycle at 70 miles per hour in a 55 miles per hour zone. That officer tried to pull Germany over for speeding, but Germany refused to stop. Deputy Davis heard about the pursuit over the radio and joined in the chase. The entire pursuit lasted about five minutes and took place on empty stretches of highway. Thomas Germany never went above 60 miles per hour during the chase itself. He ran one red light. Qualified immunity shields "government officials performing discretionary functions ... from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." The doctrine allows an officer to make a reasonable mistake as to what the law requires, and still receive qualified immunity. Here, the court reasoned that plowing down Germany's motorcycle because Germany evaded a traffic stop in a low-speed chase was excessive; Germany posed no immediate threat to anyone as he rode his motorcycle across an empty field in the middle of the night in rural Kentucky. The Sixth Circuit Court of Appeals, when the viewing the facts in the light most favorable to Germany's estate, (hence the "intentional" qualifier), decided Deputy Davis's mistake was not reasonable. The court determined that the facts demonstrated a violation of a clearly established constitutional right; that does not, however, mean that the court ruled Deputy Davis intentionally rammed Germany's motorcycle. The question of whether Deputy David acted intentionally - he maintains that he was unable to stop - is an ultimate issue for a jury.
Wal-Mart Stores, Inc. v. Betty Dukes, 556 U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 10-277, filed 06/20/11). Respondent Betty Dukes and other women have brought a Title VII employment discrimination case against Petitioner Wal-Mart Stores. The United States District Court for the Northern District of California certified a class action comprised of all women employed at any Wal-Mart store since December 26, 1998 who may have been or will be subjected to Wal-Mart's allegedly discriminatory practices and policies. Wal-Mart appealed, challenging the class certification, but the United States Court of Appeals for the Ninth Circuit affirmed the district court's ruling. Wal-Mart appealed, arguing the class certification does not meet the requirements of Federal Rule of Civil Procedure 23(a). Wal-Mart also claims that class certification was improper under Federal Rule of Civil Procedure 23(b)(2) because the employees primarily seek monetary compensation in the form of back pay, and Rule 23(b)(2) does not authorize certification of claims seeking monetary relief. The Supreme Court agreed with Wal-Mart. It noted that plaintiffs wish to sue about literally millions of employment decisions at once. Without some glue holding the alleged reasons for all those decisions together, it would be impossible to say that examination of all the class members’ claims for relief will produce a common answer to the crucial question of why some were disfavored. It also held the backpay claims were improperly certified. It held that claims for individualized relief, like backpay, are excluded, and Rule 23(b)(2) applies only when a single, indivisible remedy would provide relief to each class member.
Tichenor v. City of Topeka, Shawnee County Case No. 09C799, tried week of 5/23/11 in Div. 6. Suit alleged that Scott Scurlock used excessive force in arresting suspect after a short pursuit. Plaintiff was pulled over for speeding about 12:38 a.m. on Aug. 9, 2008, by a Shawnee County sheriff's patrol car containing a deputy and Scurlock, who were serving with an anti-gang task force. The petition acknowledges Tichenor failed to stop as they followed him for several blocks with their lights and siren on. The petition contends Tichenor stopped in front of his home and was cooperating while being taken into custody when Scurlock put his knee onto Tichenor's head as his face was against the pavement, breaking his jaw. The jury returned a verdict for the defense, finding plaintiff 80% at fault. Plaintiff filed a notice of appeal on 6/20/11.
Ashcroft v. Al-Kidd, 556 U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 10-98, filed 5/31/11). The Federal Bureau of Investigation arrested Respondent Abdullah al-Kidd as a material witness in a terrorism case. Al-Kidd sued the former United States Attorney General, Petitioner John Ashcroft, alleging that he used the material witness statute, 18 U.S.C. § 3144, as a pretext to hold and investigate al-Kidd as a terrorism suspect in violation of his Fourth Amendment rights. Ashcroft asserted absolute immunity, claiming that the use of a material arrest warrant constituted a prosecutorial function. He also claimed qualified immunity, on the grounds that there was no established constitutional violation for using a material arrest warrant at the time of the arrest. Al-Kidd contends that Ashcroft is not entitled to either form of immunity because the arrest had an investigative function and no reasonable official could believe that a material witness warrant would authorize the arrest of a suspect without any intent to use the suspect as a witness. The Ninth Circuit Court of Appeals held that Ashcroft was entitled to neither absolute nor qualified immunity. The Supreme Court reversed, holding that an objectively reasonable arrest and detention of a material witness pursuant to a validly obtained warrant cannot be challenged as unconstitutional on the basis of allegations that the arresting authority had an improper motive.
Sossaman v. Texas, 556 U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 08-1438, filed 04/20/11). States, in accepting federal funding, do not consent to waive their sovereign immunity to private suits for money damages under RLUIPA. Sovereign immunity therefore bars this inmate's suit for damages against the State of Texas.
Connick v. Thompson, 556 U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 09-571, filed 03/29/11). Petitioner the Orleans Parish District Attorney's Office concedes that, in prosecuting respondent Thompson for attempted armed robbery, prosecutors violated Brady v. Maryland , 373 U. S. 83 , by failing to disclose a crime lab report. Because of his robbery conviction, Thompson elected not to testify at his later murder trial and was convicted. A month before his scheduled execution, the lab report was discovered. A reviewing court vacated both convictions, and Thompson was found not guilty in a retrial on the murder charge. He then filed suit against the district attorney's office under 42 U. S. C. §1983, alleging , inter alia , that the Brady violation was caused by the office's deliberate indifference to an obvious need to train prosecutors to avoid such constitutional violations. The district court held that, to prove deliberate indifference, Thompson did not need to show a pattern of similar Brady violations when he could demonstrate that the need for training was obvious. The jury found the district attorney's office liable for failure to train and awarded Thompson damages. The Fifth Circuit affirmed by an equally divided court. The United States Supreme Court reversed, holding that a district attorney's office may not be held liable under §1983 for failure to train its prosecutors based on a single Brady violation. Plaintiffs seeking to impose §1983 liability on local governments must prove that their injury was caused by "action pursuant to official municipal policy," which includes the decisions of a government's lawmakers, the acts of its policymaking officials, and practices so persistent and widespread as to practically have the force of law. Monell v. New York City Dept. of Social Servs. , 436 U. S. 658 . A local government's decision not to train certain employees about their legal duty to avoid violating citizens' rights may rise to the level of an official government policy for §1983 purposes, but the failure to train must amount to "deliberate indifference to the rights of persons with whom the [untrained employees] come into contact." Canton v. Harris, 489 U. S. 378. Failure to train prosecutors in their Brady obligations does not fall within the narrow range of Canton 's hypothesized single-incident liability.
Wayman v. Accor North American, ___ Kan.App.2d ___, ___ P.3d ____ (No. 103456, filed 03/18/11). Wayman, a guest at the Manhattan Motel 6, was seriously injured by Ristor, who was driving drunk. Ristor was the general manager of the Motel 6 and was on call 24 hours a day. Wayman alleged that Accor was vicariously liable for Ristor's act and that Accor negligently hired or retained Ristor. The district court granted Accor summary judgment and the Court of Appeals affirmed. It held that drinking and driving were not within the scope of Ristor's employment. Applying the familiar rule that an employee is acting within the scope of the employment "if the employee is performing services for which the employee has been employed or is doing anything reasonably incidental to the employment. The test is not necessarily whether the specific conduct was expressly authorized or forbidden by the employer, but whether such conduct should have been fairly foreseen from the nature of the employment and the duties relating to it." The Court refused to find that drinking and driving could be fairly foreseen from the nature of Ristor's employment, even though he was on call 24/7 and required to live at the Motel.
Ortiz v. Jordan, 556 U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 09-737, filed 01/24/11). Ortiz sued prison officials after they allegedly failed to protect her from a forseeable risk of sexual assault by a correctional officer. Defendants' motions for summary judgment were denied based on disputed facts, and the matter proceeded to trial. The jury awarded judgement for the plaintiff. On appeal, Defendants claimed that the District Court should have granted their motion for summary judgment based on their qualified immunity defense. The Sixth Circuit agreed and reversed the judgment. The Supreme Court reversed the Sixth Circuit, holding that since the Defendants did not (nor could they) file an interlocutory appeal from the denial of their summary judgment motion, nor did they avail themselves of Rule 50(b), which permits the entry of judgment, postverdict, for the verdict loser if the court finds the evidence legally insufficient to sustain the verdict. Absent such a motion, an appellate court is "powerless" to review the sufficiency of the evidence after trial.
Hardy v. Cross, 565 U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 11-74, filed 12/12/11). To show the unavailability of a sexual assault victim, the prosecutor introduced evidence that police visited the witnesses mother's and father's houses several times at various times of day, spoke to various family and friends, and checked other possible sources of information on her whereabouts (jail, the hospitals, the mourges, the post office, etc). The Supreme Court held there was sufficient evidence of unavailability sufficient to admit cross-examined testimony from the first trial. "[T]he Sixth Amendment does not require the prosecution to exhaust every avenue of inquiry, no matter how unpromising."
State v. Bennington, ___ Kan. ___, ___ P.3d ___ (No. 98656, filed 10/28/11). Bennington raped a 77-year old woman. The victim died prior to his trial. Her testimony came in through her statements to her bank regarding unauthorized use of her debit card and through statements made to a SANE nurse. The Court held the statement her bank was nontestimonial and admissble, but statements to the SANE nurse were testimonial and should not have been admitted. The SANE nurse interview was conducted in concert with a police officer who asked questions, the victim was asked about past events, there was no ongoing public safety or medical emergency, and the statement was given in a formal setting. Thus, the Court held the admission of the SANE nurses' testimony about the statements made in the presence of a law enforcement officer violated Bennington's confrontation rights. However, it found the error harmless because it was merely cumulative of other admissible evidence, except as to two counts of aggravated criminal sodomy, which it reversed.
Bullcoming v. New Mexico, 564 U.S. ___, 131 S. Ct. 2705, 180 L. Ed. 2d 610 (2011) (No. 09-10876, filed 06/23/11). The Confrontation Clause requires the person that prepared a forensic lab report be the one that testifies about it. A supervisor won't do. Following his arrest for Driving While Intoxicated (DWI), Bullcoming's blood was tested at the New Mexico Department of Health in order to determine his blood alcohol content (BAC). At trial, the laboratory's report was admitted into evidence even though the actual analyst who performed the test was not a witness. Instead, another analyst from the Department of Health testified to the laboratory's procedures and the machinery used to conduct the BAC test. On appeal, Bullcoming argues that the information in the report was testimonial and that, because the actual analyst was not a witness subject to cross-examination, his Sixth Amendment right to confrontation was violated. The Supreme Court agreed, and held that the analyst that prepared the report must be the one to testify about its contents, unless that analyst is unavailable at trial, and the accused had an opportunity, pretrial, to cross-examine that particular scientist. In the words of the court, "the analysts who write reports that the prosecution introduces must be made available for confrontation even if they possess 'the scientific acumen of Mme. Curie and the veracity of Mother Teresa.'"
Michigan v. Bryant, 562 U.S.____, 131 S. Ct. 1143, 179 L. Ed. 2d 93 (2011) (No. 09-150, filed 02/28/11). Michigan police dispatched to a gas station parking lot found Anthony Covington mortally wounded. Covington told them that he had been shot by respondent Bryant outside Bryant's house and had then driven himself to the lot. At trial, which occurred before Crawford v. Washington , 541 U. S. 36 , and Davis v. Washington , 547 U. S. 813 , were decided, the officers testified about what Covington said. Bryant was found guilty of, inter alia, second-degree murder. Ultimately, the Michigan Supreme Court reversed his conviction, holding that the Sixth Amendment 's Confrontation Clause, as explained in Crawford and Davis, rendered Covington's statements inadmissible testimonial hearsay. The United States Supreme Court reversed, holding that Covington's identification and description of the shooter and the location of the shooting were not testimonial statements because they had a "primary purpose . . . to enable police assistance to meet an ongoing emergency." Davis, 547 U. S., at 822. Therefore, their admission at Bryant's trial did not violate the Confrontation Clause.
Turner v. Rogers, 556 U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 10-10, filed 06/20/11). By the beginning of 2008, Michael Turner was six thousand dollars behind in his child support payments. A South Carolina family court eventually ordered Turner to appear to explain his failure to make any payments for the past year and a half. Turner alleged his personal and physical problems rendered him unable to pay. The family court imposed civil contempt sanctions as a result of Turner's failure to comply with the earlier court order to pay child support. Turner appealed his twelve-month sentence, arguing that because there was a possibility that he would face imprisonment, the court should have provided him with counsel. The Supreme Court held that Turner's incarceration violated due process because he received neither counsel nor the benefit of alternative procedures like those the Court describes. He did not have clear notice that his ability to pay would constitute the critical question in his civil contempt proceeding. No one provided him with a form (or the equivalent) designed to elicit information about his financial circumstances. And the trial court did not find that he was able to pay his arrearage, but nonetheless found him in civil contempt and ordered him incarcerated.
State v. Plummer, ___ Kan.App.2d ___, ___ P.3d ____ (No. 101684, filed 4/15/11). Plummer went on a two-hour shoplifting spree in the Hutchinson Target store, and was accosted by store security after leaving the front doors with $300 worth of merchandise. A fistfight ensued. He was convicted of aggravated robbery, but alleged that the jury should have been instructed on theft. Judge Atchison (and two others) agreed.
State v. Harris, ___ Kan.App.2d ___, ___ P.3d ____ (No. 105435, filed 11/11/11). Harris and his live-in girlfriend got in a fight and Harris stomped on her foot with steel-toe boots. Harris was convicted of domestic battery (second offense) and appealed, claiming insufficient evidence to support the conviction. The Court of Appeals agreed the evidence was insufficient because the state never proved the girlfriend was over the age of 18, and reversed Harris' conviction for domestic battery. It remanded with directions that Harris be convicted and sentenced for the lesser included crime of battery. See also State v. Perez-Rivera.
State v. Williams, ___ Kan.App.2d ___, ___ P.3d ____ (No. 102036, filed 07/08/11). Williams, a/k/a "Pressure," picked up a 16-year old girl in Wichita, took her to Dallas, and put her on the street selling her wares. She eventually was taken into custody by Dallas police, and Pressure was charged with and convicted of aggravated trafficking and sentenced to serve 246 months. Williams argued the aggravated trafficking statute was unconstitutionally vague and overbroad because it could prohibit constitutional conduct like dating, flirting, driving a minor to the prom, or other similar conduct by legally married minors. The Court rejected his claims, finding the statute only applies where the offender knows that a child will be used to engage in forced labor, involuntary servitude, or sexual gratification of the offender or another, and"the State has a compelling interest in the well-being of its children and in the exercise of its police powers may enact legislation to protect children from adult predators." It also rejected his arguments that prosecutorial misconduct occurred, and that he should have been convicted of the lesser offense of promoting prositutiton. While noting the statutes overlap, the Court held that State might have successfully prosecuted Williams for aggravated trafficking and/or promoting prostitution, but the applicable elements of the charged offense are not identical to the elements of the lesser offense, promoting prostitution.
DL Suspension
Turner v. Kansas Dept. of Revenue, ___ Kan.App.2d ___, ___ P.3d ____ (No. 105353, filed 11/11/11). Turner was stopped early one morning in February 2009 and blew a 0.151 on a breath test. The officer served him notice of suspension of his driving privileges. Turner requested a hearing, which did not occur until July 31, 2009 and the matter was taken under advisement until April 2010, when the suspension was affirmed. Turner sought court review, claiming the delay prejudiced him. The district court agreed, and modified the suspension, making it retroactive. The district court ruled the matter should have been decided within 30 days, or by August 30, 2009. Consequently, the district court considered Turner's suspension completed as of August 30, 2010. The Court of Appeals reversed, holding that K.S.A. 2010 Supp. 8-259(a) authorizes the district court to either affirm the suspension order or reinstate the petitioner's driving privileges, but not modify the suspension order. It also held that Turner showed no prejudice resulting from the delay, since he continued to enjoy driving privileges throughout the time he was waiting on the administrative decision. However, it agreed that the 9-month delay by the hearing officer was unacceptable, noting the suspension order is a check-box form and the issues for administrative review are limited by K.S.A. 2010 Supp. 8-1020.
Crawford v. Kansas Dept. of Revenue, ___ Kan.App.2d ___, ___ P.3d ____ (No. 104837, filed 09/09/11). Crawford failed a breath test in April 2009 and requested an in-person hearing. Due to "'budgetary constraints,'" the KDR temporarily delayed all in-person driver's license suspension hearings outside the 100-mile radius of Topeka between April and July 2009. Crawford subsequently received a letter from the KDR dated September 11, 2009, setting her in-person administrative hearing for November 12, 2009, in Hays, Kansas. The November 12 hearing was held as scheduled, and the administrative hearing officer (AHO) thereafter affirmed the suspension of Crawford's driving privileges. Crawford claimed the delay violated her statutory right for a hearing "forthwith" under K.S.A. 8-1020(d) and to equal protection. The Court of Appeals disagreed, noting Crawford's driving privileges were extended during the pendency of the hearing.
Allen v. Kansas Dept. of Revenue, ___ Kan. ___, ___ P.3d ___ (No. 102134, filed 08/05/11). A trooper stopped Allen's car for weaving and failing to dim its brights. Seeing the usual indicators, the trooper requested SFSTs and a PBT. Allen failed the PBT with a 0.087 and his license was suspended. On appeal, the district court held that K.S.A. 2007 Supp. 8-1012
was unconstitutional, both as applied in this case and on its face, and ruled that the PBT result could not be used to determine if there were reasonable grounds to request the evidentiary breath test under K.S.A. 2007 Supp. 8-1001. The district court ultimately held that there was not sufficient evidence to provide reasonable grounds for the officer to believe that Allen was operating a vehicle under the influence of alcohol absent the PBT result. The Supreme Court reversed on the issue of reasonable grounds, noting it equates to probable cause, and there was probable cause in this case. Since it reversed on the reasonable grounds question, it did not address the constitutional issue. It rejected Allen's argument that City of Norton v. Wonderly, 38 Kan. App. 2d 797, 172 P.3d 1205 (2007), rev. denied 286 Kan. 1176 (2008) should control. Johnson dissents, reasoning that the court only looked at inculpatory facts and ignored exculpatory ones, which does not square with the totality of the circumstances.
Juenemann v. Kansas Dept. of Revenue, ___ Kan.App.2d ___, ___ P.3d ____ (No. 101329, filed 1/15/10, motion to publish granted 7/19/11). Jeunemann was arrested for DUI and blew a 0.226 on her breath test. Her license was suspended for one year based on the result being over 0.150. She appealed to district court, alleging that because K.S.A. 8-1020 limits the issues on review, the KDOR did not have subject matter jurisdiction to determine her breath test exceeded 0.150. The district court bought it and reversed the suspension. The Court of Appeals reversed, reasoning that since K.S.A. 2007 Supp. 8-1020(h)(2)(G) permitted consideration of a test failure of ".08 or greater," the statute necessarily includes a test result of .15 or greater.
Creten v. Kansas Dept. of Revenue, ___ Kan.App.2d ___, ___ P.3d ____ (No. 102792, filed 06/24/11). Creten blew a 0.191 on a breath test and appealed from the district court's decision to affirm the suspension of her driver's license. She claimed the Tonganoxie Police Department's failure to perform a certified standard run of the Intoxilyzer machine during the calendar week immediately prior to her breath test necessarily established that the Tonganoxie Police Department failed to substantially comply with Kansas Department of Health and Environment (KDHE) procedures, which in turn rendered the results of her blood alcohol concentration (BAC) test unreliable as a matter of law. The Court rejected her contention, holding that legislature intended the phrase "testing procedures" in subsection K.S.A. 8-1020 (h)(2)(F) to be limited to the testing procedures established by the KDHE regarding the administration of a breath test, not the testing procedures established by the KDHE to ensure the continued certification of an Intoxilyzer machine. It held that it was precluded from reaching the merits of the issue presented by Creten on appeal, because it was not a testing procedure and thus did not come within the scope of issues that a court may consider upon judicial review of an administrative suspension of driving privileges.
Delong v. Kansas Dept. of Revenue, ___ Kan.App.2d ___, ___ P.3d ____ (No. 104270, filed 02/25/11). DeLong was arrested for driving under the influence in mid-2007 and blew a bac of 0.247. The Department of Revenue suspended her driving privileges and sent her notice of the prospective suspension on December 3, 2007. Two days later it acknowledged her request for judicial review, and stayed the suspension pending judical review. Mike Holland, Delong's attorney, claimed the prospective suspension violated Delong's due process rights. The Court held the argument was "factually insupportable and legally vacuous," noting it had been rejected in five recent unpublished cases.
Schrader v. Kansas Dept. of Revenue, ___ Kan.App.2d ___, ___ P.3d ____ (No. 103176, filed 01/24/11). An Oberlin officer stopped Schrader late at night for traffic violations. Schrader finally stopped in his driveway, and initially ignored the officer's requests to remain. After being physically stopped, he smelled of alcohol and showed poor balance and coordination. Schrader refused field sobriety tests and a PBT. He was arrested for driving while suspended and transported to the Sheriff's office, where he refused a breath test. Although the officer had reasonable grounds to believe that Schrader was driving while under the influence, the only reason the officer gave for the arrest was driving while suspended. The court held that K.S.A. 8-1001(b)(1) requires an arrest for an alcohol-related driving offense rather than simply requiring an arrest for any offense involving operation of a motor vehicle, and held that Schrader's non-existent driving privileges should not have been suspended for refusing a breath test. The Kansas Supreme court later agreed.
State v. Lee, ___ Kan.App.2d ___, ___ P.3d ____ (No. 102004, filed 06/10/11). A Kansas City Kansas ordinance prohibiting the ownership of any "dog which has the appearance and characteristics of being predominantly of the breeds of Staffordshire bull terrier, American pit bull terrier, American Staffordshire terrier, or any combination of any of these breeds," is not too vague to be enforced. Accordingly, when Lee's two predominantly Pit Bulls attacked and killed his 70-year old next door neighbor, he was properly convicted of involuntary manslaughter and sentenced to 48 months in prison.
DePierre v. United States, 556 U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 09-1533, filed 06/09/2011). In a dispute involving the proper application of the Anti-Drug Abuse Act of 1986, 21 U.S.C. section 841(b)(1)(A), judgment of the appeals court upholding the conviction of petitioner for distribution of 50 grams or more of cocaine base under sections 841(a)(1) and (b)(1)(A)(iii) is affirmed where cocaine base, as used in section 841(b)(1), means not just crack cocaine, but cocaine in its chemically basic form.
McNeill v. United States, 556 U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 10-5258, filed 06/06/2011). In a dispute involving a state's ex post facto reduction of the maximum sentence for offenses under the Armed Career Criminal Act, 18 U. S. C. section 922(g)(1), judgment of the appeals court upholding petitioner's sentencing enhancement based on petitioner's prior drug trafficking convictions is affirmed because a federal sentencing court must determine whether an offense under State law is a serious drug offense by consulting the maximum term of imprisonment applicable to a defendant's prior state drug offense at the time of the defendant's conviction for that offense.
Walters v. Wolf, ___ F.3d ___ (8th Cir. No. 10-3597, filed 11/04/11). The Eighth Circuit Court of Appeals considered the 42 U.S.C. 1983 claim of a man whose handgun was seized during a traffic stop and not returned to him. Walters was stopped for lack of a front license plate on his car. During the stop, the officer became aware that Walters was wanted on an outstanding warrant. Walters was arrested and during the arrest indicated he had a weapon in his car. The officer confiscated a handgun. The gun was legally purchased, properly registered, and Walters had a valid permit to carry it. Walters later made two written demands for return of the gun. He was charged with unlawful possession of a firearm. The charge was later dismissed. Walters made a third written demand for the gun's return. The police chief refused to return the gun on the basis that Walters had an outstanding warrant in another city. That warrant, however, later became inactive. The city also justified the refusal on the basis that police department procedure required a court order for the return of confiscated property. Walters filed suit against the police chief and the city alleging violations of his due process rights and his Second Amendment right to bear arms. The district court granted summary judgment to defendants. Walters appealed. The Eighth Circuit reversed summary judgment on the due process claim, concluding that the city's reliance on its own policy to justify the deprivation of property vitiated the adequacy of the post-deprivation remedy, which would have been a state action in replevin to secure return of the gun. The Eighth Circuit affirmed summary judgment on the Second Amendment claim, concluding that while this provision affords a general right to keep and bear arms, it does not provide a right to keep or bear a specific firearm. See also Lathon v. City of St. Louis, 242
F.3d 841 (8th Cir. 2001).
DUI
State v. Smith, ___ Kan.App.2d ___, ___ P.3d ____ (No. 104839, filed 12/16/11). Failure to comply with Kansas Department of Health and Environment (KDHE) protocol on a breath test is not an appropriate subject for a motion to suppress because it does not involve a denial of constitutional rights. Therefore the state does not have to lay a foundation for the admission of the results of the breath test at the suppression hearing. Failure to comply with the protocol would be an appropriate subject for a motion in limine.
State v. Perkins, ___ Kan.App.2d ___, ___ P.3d ____ (No. 103735, filed 07/15/11). Perkins challenged the sufficiency of the evidence to support his felony DUI conviction. A trooper pulled in behind Perkin's truck and saw the passenger get out and go to the driver's side. The passenger said he was taking over driving for Perkins because Perkins' back was bothering him. Perkins was quite drunk. At trial, Perkins testified that the passenger, his stepson, had been driving the entire time and that the two of them switched places after parking the truck. The jury didn't buy it. In a confusing argument that begs the question, Perkins claims he could not be guilty of attempting to operate because, under the definition of attempt in 21-3301, he quit driving of his own accord and neither "failed" nor was he "prevented or intercepted" before he could and actually did drive. The corollary is that he did operate, so the argument does not even make sense. The Court, Atcheson, J., rejected his attempt to use the definition of attempt in 21-3301, holding the legislature has determined defendants should get no dispensation simply because they can stagger to their vehicles and turn on the ignition but prove too drunk to shift from park to drive. Applying the requirements of K.S.A. 21-3301 to an attempted DUI would undercut the purposes of K.S.A. 2008 Supp. 8-1567. Driving under the influence, like many traffic offenses, falls in the no-bad-intent category, and there is no legislative intent that attempted DUI would require proof of a specific intent to drive while drunk. However, it reversed his conviction for driving while suspended because the state charged under alternative means (canceled, suspended, revoked), but only offered evidence of suspension. There was no dispute that he was suspended, but the court acquitted him nonetheless, "We find that the State failed to present any evidence against Perkins to support a conviction under K.S.A. 2008 Supp. 8-262 on the alternative means of driving with a cancelled or revoked license. Perkins' conviction, therefore, rests on an insufficient factual basis. The conviction is reversed, and we enter a judgment of acquittal." It also reversed the mandatory fine on the DUI sentence because the court failed to consider community service. State v. Copes, 290 Kan. 209, Syl. ¶ 7, 224 P.3d 571 (2010).
City of Overland Park v. Rhodes, 46 Kan.App.2d 57, 257 P.3d 864 (No. 103762, filed 07/08/11), rev. denied ___ Kan. ___ (5/11/12). Overland Park police properly considered and abided by the Deskins factors in operating a checklane which resulted in 601 vehicles stopped, 10 DUI arrests, and an average detention period of 147 seconds. Judge Atcheson dissents, holding the checklane was unconstitutional under the First and Fourth Amendments.
State v. Adame, ___ Kan.App.2d ___, ___ P.3d ____ (No. 103646, filed 06/24/11). Adame was sitting in his disabled vehicle and pushing it along with his foot when he struck another vehicle. He had a suspended driver's license, no insurance and was also charged with a 4th offense DUI. He argued on appeal that the district court failed to consider his financial circumstances before imposing the mandatory minimum fines for DUI 4th and No Insurance and $100 over the minimum for driving while suspended. The Court agreed at to DUI and DWS and remanded for sentencing. It held the court must consider community service as provided in K.S.A. 2008 Supp. 8-1567(j) as an alternative to the DUI fine and, in doing so, must take into account the defendant's financial resources. But as to the mandatory minimum for No Insurance, when a mandatory minimum fine is imposed, the court is not required to take K.S.A. 21-4607(3) into consideration. But here the court imposed the mandatory minimum fine and six months in jail, so it should have considered Adame's financial circumstances.
State v. Edgar, 45 Kan. App. 2d 340, 246 P.3d 1013 (2011) (No. 103028, filed 02/11/11), affirmed in part, reversed in part 02/01/13. Edgar was stopped at a checklane, admitted to drinking and was asked to perform field sobriety tests and a PBT. He was eventually convicted of felony DUI. He claims the PBT result should have been suppressed because he "passed" the field sobriety tests, so the officer had no reasonable suspicion to administer a PBT. He also claims the PBT was not voluntary because the officer told him he did not have a right to refuse. The Court of Appeals rejected these claims, holding that the admission of drinking, an odor of an alcoholic beverage and some clues on field sobriety tests give reasonable suspicion to administer a PBT. "In conducting a DUI investigation, a law enforcement officer is not required to reweigh reasonable suspicion after each field sobriety test. If reasonable suspicion exists at the outset of the investigation, an officer should be allowed to run the usual array of tests, within a reasonable number, to determine if the officer's reasonable suspicion leads to arrest or release of the person detained." It also held that implied consent supplied by K.S.A. 8-1012 was sufficient.
State v. Finch, ___ Kan. ___, ___ P.3d ___ (No. 101136, filed 01/07/11). The district court erred in granting a motion for acquittal based on a margin of error on an intoxilyzer test. Our legislature did not include any language in K.S.A. in 8-1567(a)(2) requiring the prosecution to overcome any margin of error. As an appellate court, "we are not willing to write a margin of error into its otherwise clear statutory language."
Employment & Discipline
Denning v. The Johnson County Sheriff's Civil Service Board, 46 Kan. App. 2d 688, 266 P.3d 557 (2011) (No. 104318, filed 10/21/11). Deputy Michael Mauerer was terminated after lying about how a patrol car windshield was broken. Mauerer and another deputy were returning from Topeka when Mauerer tried to kill a fly with a notebook and cracked the windshield. He initially indicated the windshield was cracked by a rock. A first civil service board reversed the sheriff's decision. Denning appealed. The district court reversed the civil service board and remanded for rehearing. The second civil service board affirmed the sheriff's decision. The Court of Appeals affirmed. Mauerer argued that his reports were merely "incomplete—not untruthful." The Court of Appeals disagreed, stating that leaving out critical facts is a violation of the department's truthfulness policy. It held there was substantial competent evidence to support the board's decision. Leben dissents and would have affirmed the first board.
NAACP v. North Hudson Regional Fire & Rescue, ___ F.3d ___ (3rd Cir. Nos. 10-3965 & 10-3983, filed 12/12/11). A New Jersey fire department's residency requirement for firefighter applicants is invalid because it results in a disparate impact on African-Americans. The residency requirement applied to firefighter candidates, but once hired they can live anywhere, even outside the district. Evidence included data that indicated that 37.4% of protective service positions are held by African-Americans in the tri-county area. Based on this percentage, "one would expect 121 North Hudson firefighters to be African-American," yet the department employs only two. "In light of the ample evidence of record…the district court did not err in concluding that no genuine dispute of material fact exists as to whether North Hudson's residency requirement creates a disparate impact on African-American firefighter applicants" The court rejected the fire department's argument that business necessity justifies its residency requirement. "We have no quarrel with the notion that a critical aspect of firefighting is the ability to respond quickly and that familiarity with the streets and buildings of a locale is important to achieving that goal," said the court. "But this valid point cannot be reconciled with the fact that North Hudson does not require its firefighters to reside in the North Hudson municipalities after they are hired." See also Ricci vs. DeStefano, in which the nation's high court ruled in favor of 17 white and one Hispanic firefighter who were passed over for promotions.
Conceal City, L.L.C. v. Looper Law Enforcement, LLC, 2011 WL 5557421 (N.D.Tex. 2011). A Northern District of Texas Federal Court finds that a printout of a screen shot satisfies the best evidence rule in FRE 1002. The parties' dispute involved a holster covered by a U.S. Patent. The patent intends to improve upon the inside-the-pants pistol holster. It does so by using stiff leather for the inner and outer layers and extending the layers forwardly and rearwardly to form wings. The wings maximize the flatness of the holster and thereby minimize the bulge of the pistol. The patented holster also permits the user to wear a pager or pager-like device to cover the clip connecting the holster and waistband. From the exterior, only the pager or pager-like device is visible. The intended result of these two improvements is to better conceal the pistol. Before trial, Conceal City sought a preliminary injunction enjoining defendants from using the production dies; manufacturing, distributing, or selling an infringing holster; and engaging in misleading advertising, such as marking the Hyde–It Holster as related to the patent and advertising that the Wiesners' company is the home of the "Cell/PDA Pal." As support for its claim that the Wiesners committed patent infringement, Conceal City offered in evidence a screen shot of the Wiesners' website, universalholsters.com, which twice states that the Hyde–It Holster is "patented" and refers to "US Patent # 5570827" at the bottom of the page. Conceal City objected that the admission of the printout of the screen shot violated the Best Evidence Rule, but the Northern District of Texas disagreed, concluding that the printout was an "original" for Best Evidence purposes under Federal Rule of Evidence 1001(3), which states in relevant part that If data are stored in a computer or similar device, any printout or other output readable by sight, shown to reflect the data accurately, is an "original."
State v. Horton, ___ Kan. ___, ___ P.3d ___ (No. 101054, filed 07/15/11). The district court erred in determining it had no authority to allow the defense to submit additional evidence after the jury began deliberations. Horton was convicted of murder, but his conviction was reversed on appeal, State v. Horton, 283 Kan. 44, 151 P.3d 9 (2007). He was retried, and the state offered additional evidence from two inmates who testified that Horton had told them that he had killed a girl under circumstances conforming to the State's theory. During deliberations, Horton's counsel moved to suspend deliberations for 2 days in order to give the defense time to translate and analyze a recorded telephone call between one of the inmates and the inmate's mother. Judge Davis denied the motion. The Supreme Court reversed, holding the trial judge had discretion to do so.
State v. Chavez-Aguilar, ___ Kan.App.2d ___, ___ P.3d ____ (No. 102910, filed 04/22/11). Defendant and his brother became involved in a fight at a Wichita bar. After being escorted to their truck, the brother intentionally drove the truck through the gathered crowd, striking three people, killing two and seriously injuring one. As the truck passed through, and while one victim was being hit, the passenger—who was identified as Chavez—leaned out the truck window and screamed, "[T]his is what you mother fuckers get, this is Sureno town." Defendant claimed that gang evidence was improperly admitted at trial. The Court of Appeals gave his argument short shrift, saying that gang affiliation was directly related to the crimes charged and was an essential part of the events surrounding the commission of the crimes. Gang affiliations of the combatants explained why the fight began, and it thus forms a part of the events surrounding thecrimes. Also, this evidence demonstrated a motive for Chavez and his brother to drive through a crowd of people while screaming out their gang affiliation, which offers an explanation for an otherwise inexplicable act.. The court concluded the discussion by saying, "This entire crime scene reeks of gang activity."
Skinner v. Switzer, 556 U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 09-9000, filed 03/07/11). A convicted state prisoner seeking DNA testing of crime-scene evidence can assert that claim in a civil rights action under 42 U. S. C. §1983. The Court granted review to decide a question presented, but left unresolved, in District Attorney’s Office for Third Judicial Dist. v. Osborne , 557 U. S. ___, ___ (2009). Skinner was alleged to have killed his live-in girlfriend and her sons. A large quantity of DNA evidence was collected at the scene but never tested. Shortly after his conviction and death sentence, Skinner requested testing which was denied. He sued the district attorney, claiming the denials infringed his constitutionally protected rights under the Fourteenth Amendment. The Fifth Circuit granted defendant's motion to dismiss for failure to state a claim, holding that the only remedy was a petition for writ of habeas corpus. The United States Supreme Court reversed. Distinguishing Heck v. Humphrey, 512 U. S. 477 (1994), the Court held that success in his suit for DNA testing would not "necessarily imply" the invalidity of his conviction.
United States v. Yeley-Davis, ___ F.3d ___ (10th Cir. No. 10-8000, filed 01/20/2011). Admission of certified Verizon cell phone records to establish defendant's conspiracy to distribute drugs did not violate her rights under the Confrontation clause, and it was not error to allow a law enforcement officer to testify about how cell phones work.
Sykes v. United States, 556 U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 09-11311, filed 06/09/2011). In a dispute involving whether a felony vehicle flight falls within the ambit of the Armed Career Criminal Act (ACCA), 18 U.S.C. section 924(e), judgment of the appeals court is affirmed where a felony vehicle flight, as proscribed by Indiana law, is a violent felony for purposes of ACCA.
R.J. Reynolds v. United States Food and Drug Administration, ___ F.Supp.2d ___ (USDC, DC No. 11-1482(RJL) filed 11/7/11). A DC federal judge issued a preliminary injunction blocking enforcement of new rules by the Food and Drug Administration that require cigarette manufacturers to display graphic warning labels on every pack of cigarettes sold. The judge found that the requirement violated cigarette manufacturers' rights under the First Amendment since it forced them to engage in commercial speech that goes beyond the conveyance of purely factual or uncontroversial information.
Brown v. Entertainment Merchants Association, 556 U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 08-1448, filed 06/27/11). The Supreme Court struck down a California law that restricted the sale of violent video games to minors, noting that parents, not government should restrict which games children buy. Justice Scalia wrote that there was no culture in the United States of restricting children's access to depictions of violence. On the contrary, Scalia said society has enabled children's access to violence for years. "Grimm's Fairy Tales, for example, are grim indeed. .... Hansel and Gretel (children!) kill their captor by baking her in an oven."
United States v. Bagdasarian, ___ F.3d ___ (9th Cir. No. 09-50529, filed 07/19/11). Racist and violent statements made by Bagdasarian against the then-candidate Barack Obama resulted in his prosecution and conviction for violating 18 U.S.C. § 879(a)(3), which makes it a felony to threaten to kill or do bodily harm to a major presidential candidate. A month prior to the 2008 presidential election, Walter Bagdasarian anonymously posted the following statements on a message board:
"Obama f- the n- he will have a 50 cal in the head soon," and
"shoot the n-."
The 9th Circuit reversed, holding the statements were protected by the First Amendment. As the court points out, this statute can only punish speech that is not protected by the First Amendment. A true threat is one backed by sufficient evidence demonstrating that a reasonable person would believe the speaker to intend harm, and that the speaker intended his statement to be understood as such. The 9th Circuit concluded that that the above statements do not indicate that Walter Bagdasarian intended to shoot Obama.. Instead, it found that the first statement merely predicts that President Obama "will have a 50 cal in the head soon," while the second encourages others to behave violently.
Borough of Duryea v. Guarnieri, 556 U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 09-1476, filed 06/20/11). In 2003, the Borough of Duryea, Pennsylvania fired its police chief, Charles J. Guarnieri, Jr. Guarnieri filed a grievance leading to arbitration and his reinstatement. When Guarnieri returned to his position, Duryea issued him a number of directives limiting the tasks he could and could not do on the job. Guarnieri filed a second grievance, leading to modification of the directives. Subsequently, Guarnieri sued Duryea in District Court alleging that Duryea issued the directives in retaliation for his filing of the 2003 grievance, violating his First Amendment right to petition. After a jury found for Guarnieri in District Court, Duryea appealed to the Third Circuit. The Third Circuit held that the First Amendment protects public employees in filing grievances concerning any matter, even those of a personal nature. The Supreme Court reversed, holding that the public concern test developed in Speech Clause cases also applies to Petition Clause claims by public employees.
Snyder v. Phelps, 562 U.S. ___, 131 S.Ct. 1207, 179 L.Ed.2d 172 (No. 09-751, filed 03/02/11). Westboro Baptist's picketing signs which stated, e.g., "Thank God for Dead Soldiers," "Fags Doom Nations," "America is Doomed," "Priests Rape Boys," and "You’re Going to Hell"— displayed at a military member's funeral were protected by the First Amendment. Therefore, a jury verdict against Westboro in the amount of $2.9 million in compensatory damages and $8 million in punitive damages cannot stand. Chief Justice Roberts observed, "Westboro believes that America is morally flawed; many Americans might feel the same about Westboro."
Salazar v. Butterball, LLC, ___ F.3d ___ (10th Cir. No. 10-1154, filed July 5, 2011). Employees at a turkey processing plant filed a collective action against Butterball alleging that its failure to compensate them for time spent donning and doffing personal protective equipment (PPE) violated, among other things, the Fair Labor Standards Act (FLSA). Neither Butterball nor the former owner of the plant ever paid employees for donning and doffing time. Plaintiffs argued that Butterball's failure to compensate them for donning and doffing time violated the FLSA. The district court disagreed and granted summary judgment for the employer. The Circuit focused on 29 U.S.C. § 203(o), part of the FLSA, which states that "hours worked" excludes "any time spent in changing clothes or washing at the beginning or end of each workday which was excluded from measured working time during the week involved by the express terms of or by custom or practice under a bona fide collective-bargaining agreement applicable to the particular employee." The Tenth Circuit reasoned that "changing clothes" was ambiguous and interpretation of this phrase was a question of first impression in this circuit. The court concluded that "clothes" encompassed all of the PPE at issue. Further, there was a custom or practice at the plant of not paying employees for time spent donning and doffing the PPE. Thus, the plaintiffs' claims that they should be compensated for this time as "hours worked" under the terms of the FLSA failed.
Kasten v. Saint-Gobain Performance Plastics Corporation, 556 U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 09-834, filed 03/22/11). Oral complaints trigger the anti-retaliation protections of the FLSA. Kasten says that Saint-Gobain located its timeclocks between the area where Kasten and other workers put on (and take off) their work-related protective gear and the area where they carry out their assigned tasks. That location prevented workers from receiving credit for the time they spent putting on and taking off their work clothes—contrary to the Act’s requirements. In a related suit the District Court agreed with Kasten, finding that Saint-Gobain’s "practice of not compensating … for time spent donning and doffing certain required protective gear and walking to work areas" violated the Act. Saint-Gobain denied that Kasten made any significant complaint about the timeclock location. And it says that it dismissed Kasten simply because Kasten, after being repeatedly warned, failed to record his comings and goings on the timeclock. Accepting Kasten's well-pleaded facts as true, the court concluded that "filed" as used in 29 U. S. C. §215(a)(3) includes oral complaints, which triggers FLSA anti-retaliation protection.
State v. Black 1999 Lexus, ___ Kan.App.2d ___, ___ P.3d ____ (No. 102286, filed 01/07/11). The Johnson County District Attorney's office sought forfeiture of a drug dealer's $8000 car after he made two sales worth $250 from the car. There was also other evidence of drug dealing resulting from warrant service at the dealer's home. The forfeiture of Wurtz' Lexus was not grossly disproportionate to his conduct, and K.S.A. 60-4106 is not unconstitutionally vague.
Dissmeyer v. State, ___ Kan. ___, ___ P.3d ___ (No. 102786, filed 04/08/11). Legislature's prohibition of "gray machines," was overbroad. The act defined such machines as "mechanical, electro-mechanical or electronic device, capable of being used for gambling, that is: (1) Not authorized by the Kansas lottery, (2) not linked to a lottery central computer system, (3) available to the public for play or (4) capable of simulating a game played on an electronic gaming machine or any similar gambling game authorized pursuant to the Kansas expanded lottery act." The Court found that a law that makes it unlawful to possess almost any kind of tool or machine and that allows the State to confiscate almost any personal property, regardless of its actual use, is overbroad and unconstitutional. It held that K.S.A. 2010 Supp. 74-8702(g), defining gray machines, in combination with its enforcement provisions, K.S.A. 2010 Supp. 74-8750(d) and K.S.A. 2010 Supp. 74-8761, are unconstitutional as they relate to gray machines.
State v. Reed, ___ Kan.App.2d ___, ___ P.3d ____ (No. 102390, filed 02/18//11). A robbery victim called police, who encountered a suspect shortly after the robbery. They drove the suspect to where the victim was, and showed him to the victim while the suspect was in the back seat of a police car in handcuffs. The victim identified the suspect. Reed complains the one-person show up was overly suggestive under the circumstances and should have been suppressed. The Court of Appeals disagreed. It noted that show-up identifications are not favored absent exigent circumstances because they are suggestive, and in fact found this one unnecessarily suggestive, but found that based on the lack of time passing between the robbery and the identification, the procedure used in this case was not impermissibly suggestive.
State v. Montes-Mata, 292 Kan. 367, 253 P.3d 354 (2011). Charges against the defendant were dismissed for a speedy trial violation. In the appeal, the state questioned the effect of an immigration document sent to the jail while Montes-Mata was incarcerated. ICE sent a Form I-247 titled "Immigration Detainer--Notice of Action." It contained language saying "Federal regulations (8 CFR 287.7) require that you detain the alien for a period not to exceed 48 hours (excluding Saturdays, Sundays and Federal holidays) to provide adequate time for ICE to assume custody of the alien." The state alleged that when the sheriff received the Form I-247 from the ICE, Montes-Mata no longer was being held "solely" on the Lyon County charges, thus tolling the 90-day requirement in K.S.A. 22-3402(1). The Supreme Court disagreed, stating:
It is worth noting, however, that although the various federal jurisdictions have not been in complete harmony, the predominant view has been that a defendant is not "in custody" in the sense necessary to support a petition for habeas corpus relief merely because he or she is the subject of a detainer from the ICE. See, e.g., Zolicoffer v. U.S. Dept. of Justice, 315 F.3d 538, 541 (5th Cir. 2003); Prieto v. Gluch, 913 F.2d 1159, 1164 (6th Cir. 1990); Campillo v. Sullivan, 853 F.2d 593, 595-96 (8th Cir. 1988). But see Vargas v. Swan, 854 F.2d 1028, 1032-33 (7th Cir.1988).
On its face, the Form I-247 sent to the Lyon County Sheriff is not the equivalent of an outstanding warrant for probation revocation, parole violation, or new charges in another jurisdiction. Each of those represents a custodial claim on a defendant's presence to adjudicate existing charges or allegations. The I-247 sent to the Lyon County jail presented the interest of the ICE in clear terms, disclosing that an investigation "has been initiated" and that the ICE would like to know when the defendant was going to be released from custody in Lyon County. The ICE notice in this case is analogous to a call to a sheriff from a law enforcement agency in a neighboring county, expressing interest in one of his or her inmates and asking the sheriff for notice when the inmate is to be released. The request is for cooperation, not custody. It is not particularly helpful that the I-247 form bears the heading "Immigration Detainer--Notice of Action" since, in this case, the "action" was inconsistent with the common custodial use of the term detainer.
Montes-Mata, 292 Kan. at 370-71.
State v. Whitt, ___ Kan.App.2d ___, ___ P.3d ____ (No. 105689, filed 09/23/11). Olathe detective Matt Campbell conducted a text-book Reid-technique 2-hour noncustodial interrogation of a suspect in an indecent liberties case the police station. The officer told the suspect he was not under arrest, was free to go at any time, and would be and was released at the end of the interview. Judge Bornholdt held that the interrogation was custodial because the interview room only had one exit, and during the interrogation phase the detective only gave the suspect two choices - admit he was a child molester or admit that things got out of hand and he inappropriately touched his 10-year old great niece. The Court of Appeal reversed, finding the interrogation non-custodial.
State v. Johnson,___ Kan.App.2d ___, ___ P.3d ____ (No. 103786 filed 09/02/11). (Summary by Colin Wood). Lyndol Johnson was stopped for having a small child on his lap while driving. His driver's license was suspended, had no proof of insurance, and he smelled of alcohol. During the encounter, Lyndol was arrested for the suspended license and the insurance violation. During the arrest, and before conducting a patdown or giving Miranda, the officer asked Lyndol two questions, probably all in one general phrase 1) [whether Lyndol] had any weapons, sharp objects, or anything that would stick me there;" and 2) [whether Lyndol] had anything on his person that [the officer] should know about." In response to the questions, Lyndol told the officer that he had marijuana in his pocket. When Lyndol lost his trial court suppression hearing and was convicted, he appealed on numerous grounds, but what is important here is the pre-Miranda issue. It was Lyndol's argument that Lyndol was in arrest custody, was not provided with the Miranda warning, and was asked a question(s) that the officer should have known would result in a self-incriminating response and in violation of the 5th Amendment.
Though the introduction at trial of the marijuana ultimately was OK'd on different grounds, it is important here to alert you to the following: the Kansas Court of Appeals panel held that part of the officer's pre-Miranda questioning was wrong. There are two prerequisites to the applicability of Miranda: arrest custody AND interrogation. A person is in custody for Miranda purposes when the person is formally taken into custody (like Lyndol) or is deprived of his or her freedom of action in a significant way. A person is interrogated for Miranda purposes when law enforcement officer use words or actions that they should reasonably know are likely to elicit an incriminating response. However, a narrow "public safety" exception exists to the rule that Miranda warnings must be given prior to custodial interrogation: when it is objectively reasonable for the officer to believe the [pre-Miranda] questioning is necessary to protect the officer or the public from immediate danger. With that exception in mind, the appellate panel discussed the officer's two questions: #1 (…anything going to stick me…) was fine. An officer has an immediate need to protect himself or herself from weapons or sharp objects, and an officer may pose this type of narrow question to a suspect prior to giving Miranda. BUT, a question like #2 (…had anything on his person that should know about) is wrong and not "narrowly tailored to fit the public safety exception" to Miranda. So, we have all done it, but we are now on notice that with persons who are in arrest custody and have not received the Miranda warning, we should not ask open-ended questions like, "do you have anything on you (or in the car) that I should know about"? We should focus pre-Miranda questions only on immediate dangers to you and others.
J.D.B. v. North Carolina, 556 U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 09-11121, filed 06/16/11). Petitioner J.D.B. was a thirteen-year-old boy suspected of being involved in two break-ins. The police questioned him while he was at school without giving him a Miranda warning, and J.D.B. made incriminating statements. The questioning occurred in a school conference room with two police officers and two school administrators present, and lasted about 30 to 45 minutes. At his trial, J.D.B. moved to suppress those statements, arguing that he had been subjected to custodial interrogation under Miranda v. Arizona. Specifically, J.D.B. argued that a court should take account of his age when determining whether he was in custody. The North Carolina trial court and appellate courts all held that J.D.B. was not in custody for purposes of Miranda and allowed the statements into evidence. J.D.B. was convicted, placed on 12 months' probation, and ordered to pay restitution. J.D.B. appealed to the Supreme Court, arguing that age should be a factor in determining whether he was in custody for Miranda purposes. North Carolina contended that age is a subjective factor and should not be part of the objective custody inquiry. The Supreme Court disagreed, reasoning that it is beyond dispute that children will often feel bound to submit to police questioning when an adult in the same circumstances would feel free to leave. Seeing no reason for police officers or courts to blind themselves to that commonsense reality, the court held that a child’s age properly informs the Miranda custody analysis.
Klen v. City of Loveland, Colorado, ___ F.3d ___ (10th Cir., No. 10-1311, filed 11/15/11). "[T]he due process clause is not a guarantee against incorrect or ill-advised government decisions." Camuglia v. City of Albuquerque, 448 F.3d 1214, 1222 (10th Cir. 2006) (internal quotation omitted). An arbitrary deprivation of a property right may violate the substantive component of the Due Process Clause if the arbitrariness is extreme. See id.
Hill v. Kansas Department of Labor, ___ Kan. ___, ___ P.3d ___ (No. 99726, filed 04/01/11), Rosen, J. "At oral argument, OT Cab cited to the final chapter of Mick Jagger and Keith Richards' learned treatise "Let It Bleed" for legal authority on the first issue, saying: "You don't always get what you want, but you shouldn't get what you don't ask for." This court responds with an accurate quotation of the Rolling Stones classic, which perhaps better summarizes these and many litigants' posture before this court: "You can't always get what you want / But if you try sometimes you just might find / You get what you need.""
Martin v. Kansas Parole Board, ___ Kan. ___, ___ P.3d ___ (No. 103371, filed 06/10/11). On February 13, 2008, when Louie R. Martin was released on postrelease supervision, he was given an expiration of postrelease supervision date of June 29, 2009. Shortly after his release, the Kansas Legislature passed an amendment to K.S.A. 21-4608, which impacted Martin's previously imposed postrelease expiration date by extending it nearly 11 years. Martin challenged the extension and won. The Supreme Court held that because the 2008 amendment to K.S.A. 21-4608(e)(2) is an impermissible ex post facto law as applied to Martin, Martin's original postrelease supervision expiration date of June 26, 2009, is effective.
State v. Everest, 45 Kan. App. 2d 923, 256 P.3d 890 (No. 102720, filed 05/13/11, rev. denied ___ Kan. ___ (01/20/12)). Lying to a police officer about your identity on a 5th offense DUI stop does not constitute obstruction if the officer soon discovers the suspect's true identity. The offender's actions must substantially hinder the officer's investigation, and in this case, they did not. Judge McAnany reversed a conviction tried before Judge Tatum, holding the evidence of obstruction was insufficient based on the holding in State v. Parker, 236 Kan. 353, 364-65, 690 P.2d 1353 (1984).
Sorrell v. IMS Health, Inc., 556 U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 10-779, filed 06/23/11).In 2007, Vermont passed Act 80, which prohibits prescription drug companies from obtaining patients' personal information for marketing purposes without the prescribing physician's consent. The pharmaceutical companies sued the state of Vermont, seeking an injunction prohibiting the enforcement of Act 80 on the grounds that it was an unconstitutional restriction on their right to commercial speech. Vermont argues that Act 80 does not regulate speech protected by the First Amendment, and that the law is related to Vermont's interests of protecting medical privacy, controlling health care costs, and protecting public health. The Court held that Vermont’s justifications for §4631(d) do not withstand heightened scrutiny.
FCC v. AT&T INC., 556 U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 09-1279, filed 03/01/11). The Freedom of Information Act requires federal agencies to make records and documents publicly available upon request, subject to several statutory exemptions. One of those exemptions, Exemption 7(C), covers law enforcement records the disclosure of which "could reasonably be expected to constitute an unwarranted invasion of personal privacy." 5 U. S. C. §552(b)(7)(C). CompTel, a trade association, submitted a FOIA request for documents AT&T had provided to the Federal Communications Commission Enforcement Bureau during an investigation of that company. The Bureau found that Exemption 7(C) applied to individuals identified in AT&T's submissions but not to the company itself, concluding that corporations do not have "personal privacy" interests as required by the exemption. The FCC agreed with the Bureau, but the Court of Appeals for the Third Circuit did not. It held that Exemption 7(C) extends to the "personal privacy" of corporations, reasoning that "personal" is the adjective form of the term "person," which Congress has defined, as applicable here, to include corporations, §551(2). The United States Supreme Court reversed, holding that corporations do not have "personal privacy" for the purposes of Exemption 7(C).
NASA v. Nelson, 556 U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 09-530, filed 01/19/11). Twenty-eight federal contractors working at the Jet Propulsion Laboratory at the California Institute of Technology sued the National Aeronautics and Space Administration, alleging that NASA's requirement that employees undergo a background investigation violated their right to informational privacy. The contractors specifically alleged that the information sought was overly broad and unrelated to their abilities as employees. The government claimed that the information requested was relevant to the government's security concerns and that safeguards helped ensure that the information collected was not susceptible to public disclosure. The Ninth Circuit issued a preliminary injunction, finding that the government's inquiries were not sufficiently tailored to a legitimate government interest. The Supreme Court reversed, holding the interest of the government, as an employer, in preventing security risks was reasonable, versus the interest of individuals in protecting personal information.
State v. Hall, 45 Kan. App. 2d 290, 247 P.3d 1050 (2011), affirmed ___ Kan. ___, ___ P.3d ___ (No. filed //13). (No. 102297, filed 06/28/13). Hall stole from a veterinary clinic where she worked. She was convicted of theft and computer crime. Johnson County Judge Davis initially ordered Hall to pay about $10,000 in restitution. Defense counsel argued the amount was too much, and indicated he may challenge the amount at a later hearing. Judge Davis told him that any challenge should be filed within 30 days. After defendant filed her challenge, the judge ordered restitution of about $15,000. Hall contended the trial court did not have jurisdiction to increase the amount, and argued that retail value of the items stolen was an improper measure of the restitution amount since the clinic bought the items at wholesale prices. The Court of Appeals held that jurisdiction was properly reserved on the restitution amount, but agreed with Hall on the retail v. wholesale amounts. It said the assumed lost profit should not be included in the fair market value to be awarded as restitution. The Supreme Court focused on whether retail cost or wholesale cost is the appropriate measure of loss for determining restitution for stolen inventory, and concluded the answer should be: "It depends." It rejected a bright - line rule favoring either retail or wholesale cost and said the sentencing judge must evaluate the evidence, weigh all factors, and consider the facts and circumstances of each case to determine a value that will compensate the victim for the actual loss caused by the defendant's crime. It remanded for reconsideration of the restitution award.
United States v. Powell, 2011 U.S. App. Lexis 22795 (4th Cir. 2011). Drug and gun evidence should have been excluded due to a lack of reasonable suspicioun for the stop and reasonable grounds for a pat-down. The officers knew Powell had prior arrests for armed robbery and Powell gave the officers false information about his driver's license, but that did not amount to reasonable grounds for the pat-down. See also United States v. Foster, 634 F.3d 243 (4th Cir. 2011); United States v. Massenburg, 654 F.3d 480 (4th Cir. 2011); United States v. DiGiovanni, 650 F.3d 498 (4th Cir. 2011). An officer must do something more than label actions "suspicious" to make it so. They must articulate why a behavior is suspicious or logically demonstrate the behavior is likely to be indicative of some more sinister activity than may appear at first glance. Foster, 634 F.3d at 246, 248.
United States v. Goode, 2011 U.S. Dist. LEXIS 144899 (E.D. Pa.). "The defense argues that Trooper Lora's friendly and respectful demeanor was so much so as to be actually and literally disarming and, hence, violative of Mr. Goode's exercise of his free will. The Court declines to entertain an argument (or cynicism, generally) that would lead to a finding that politeness and good humor on the part of law enforcement officers can be subject to such alchemy as to unconstitutionally eviscerate the will power and intelligence of a fully functional adult. It is difficult to imagine the precise admonition that would have to be given to police officers to explain that they should beware of being "too nice" lest the exclusionary rule be invoked. Such a situation would set on its head the truism that more flies are caught with honey than with vinegar."
State v. Oram, ___ Kan.App.2d ___, ___ P.3d ____ (No. 104163, filed 12/02/11). Wyandotte County deputies stopped a car on October 2, 2008. They arrested the driver for obstruction and the passenger for a warrant and secured them both in handcuffs in the back seat of a police car. They searched the car incident to arrest and found marijuana. Oram confessed it was hers. Oram appealed from her conviction alleging the search violated United States v. Gant, and that the good faith exception should not have applied. The Court of Appeals agreed. "[W]e conclude that well-trained deputies in Kansas would not have believed in good faith that they had the authority to search a car after the defendant had been handcuffed, searched, and placed in the back seat of a patrol car on October 2, 2008. As stated earlier, for many years in Kansas K.S.A. 22-2501 has limited the physical scope of a search incident to arrest to the arrestee's immediate presence. Deputies are presumed to know the law of the jurisdiction that they are enforcing. Therefore, a failure to understand the law by the very person charged with enforcing it is not objectively reasonable under the Fourth Amendment. Unlike Daniel, where our Supreme Court found that when the police searched Daniel's car and purse that a reasonable officer would not have known that K.S.A. 22-2501(c) was unconstitutional, the deputies in this case had knowledge or, at the very least, they should have been aware that their search of Oram's car was in violation of the statutory limits of K.S.A. 22-2501." It went on to state, "Leon's good-faith exception to the exclusionary rule applies only narrowly outside the context of a warrant. "It has not been applied when the mistake resulting in the Fourth Amendment violation is that of the officer conducting the seizure and search, rather than a neutral third party not engaged in the 'competitive endeavor of ferreting out crime.'" Herrera, 444 F.3d at 1251 (quoting Leon, 468 U.S. at 914). It also found insufficient evidence that this was an inventory search, and affirmed suppression of the confession due to insufficient evidence of attentuation.
State v. Stevenson, 46 Kan. App. 2d 474, 262 P.3d 689 (No. 104115, filed 09/16/11), reversed, see State v. Stevenson, above.. Sedgwick County officers stopped a vehicle driven by Stevenson for failing to signal the intent to turn within the appropriate distance. Stevenson was the sole occupant. Officers noted an "extremely strong odor" of alcohol coming from the vehicle. The got Stevenson out for FSTs, and testified that a very strong odor of alcohol remained in the vehicle once Stevenson stepped out. The officers determined that Stevenson was not under the influence of alcohol and then searched the vehicle based on the odor. Officers found a large bottle of wine in the backseat of the vehicle that had leaked a large quantity of red wine onto the floorboard behind the driver's seat. They also found two pipes with methamphetamine residue and digital scales in the center console. Stevenson challenged the search, claiming odor alone did not establish probable cause. The Court of Appeals disagreed. Once Stephenson was removed from the car and it was determined that he was not intoxicated, the clear source of the "very strong" odor of alcohol was the interior of the car. In fact, it was so strong the officers immediately associated the odor with an open container that had spilled in the vehicle, certainly a fair inference. If the alcohol was being transported legally in an unopened container, it would not have a detectable odor. It was reasonable for the officers to act on their suspicions, rather than ignore evidence which signals a crime. Finally, Gant did not abrogate the automobile exception. Buser dissents, and would hold there was no probable cause since no Kansas appellate court previously has held the odor of a legal substance may provide the sole basis to justify a warrantless search of an automobile based upon probable cause to believe the vehicle contained contraband or evidence of a crime.
United States v. Burleson, ___ F.3d ___ (10th Cir. No. 10-2060, 2011 U.S. App. LEXIS 18820 (10th Cir. 09/12/11). A Roswell, New Mexico police officer saw three persons exit an alley and begin walking in the middle of the street side by side. One of the persons was carrying a Pit Bull without a leash. The officer stopped them because of recent crime reports in the neighborhood, walking in the street violated a state law and local ordinance and the officer thought it strange that one of the persons was carrying a dog, and he thought it might be stolen. The officer asked the group to "hold up." They did. The officer asked them about what they were doing and about the dog, after which he asked for their names. He then ran warrant checks and one of the persons had a warrant. The time of the stop up to this point was about three to five minutes. He verified that the person he stopped was the one named in the warrant, and told him he was under arrest. Burleson then told the officer, "Just so you know, I do have guns on me." The officer handcuffed Burleson and found two handguns and ammunition in Mr. Burleson's pants pocket and waistband. Burleson, a convicted felon, challenged the stop claiming it was not based on reasonable suspicion. The Circuit disagreed. The court held that the same rationale that allows warrant checks in traffic stops applies with equal force in the pedestrian context.
United States v. Martinez, 643 F.3d 1292 (10th Cir. 2011). (Summary by Ken Wallentine).
Static-only 911 call did not justify exigent circumstances entry to home
A 911 dispatcher received a call from Martinez's home. The dispatcher could hear only static and got the same result upon dialing the number back. The dispatcher sent officers to investigate. One of the responding officers knew that telephone line problems or bad weather caused glitches that result in static calls. The responding officers knocked several times on the door. When no one responded, the officers looked through windows. They looked through a sliding glass door and saw a room that had electronics boxes and equipment strewn about. The officers entered through the unlocked door to check for persons inside who might need help. They found no one home, but found drugs and child pornography in open view. After the officers checked the house, Martinez arrived. The officers arrested him and obtained a search warrant for the home.
Martinez asked the court to suppress the evidence found, claiming that there were not exigent circumstances to justify the officers' warrantless entry into his home. The prosecution argues that several factors justified the entry: (1) the static-only 911 call from the residence; (2) the "disheveled" appearance of the house; (3) the unlocked door on the backside second floor of the house; and (4) the electronics boxes just inside the unlocked door. In Brigham City v.
Stuart, 547 U.S. 398 (2006), the Supreme Court held, "officers may enter a home without a warrant to render emergency assistance to an injured occupant or to protect an occupant from imminent injury." The Tenth Circuit previously upheld an entry into a home based on a 911 hang-up call in United States v. Najar, 451 F.3d 710 (10th Cir. 2006) (discussed in 2006 Xiphos archives).
The court distinguished this case from United States v. Najar, explaining that 911 hang-ups inform the police that someone physically dialed 9-1-1 and either hung up or was disconnected. An unanswered return call gives further information pointing to a probability that after the initial call was placed the caller or the phone has somehow been incapacitated. A static call, particularly where emergency operators and officers are aware of weather and technical glitches that can sometimes cause such calls, does not raise the same suggestion that someone has called and is unable to answer the return call. Thus, the court held that a static-only call does not justify warrantless entry by police with no substantiating evidence of danger, injury, or foul play.
United States v. Hernandez, ___ F.3d ___, 2011 WL 2750914 (5th Cir. 2011). (Summary by Ken Wallentine).
GPS tracker and monitoring did not require a warrant
Officers were investigating Angel Hernandez for suspected drug trafficking. They knew that he drove a Chevrolet pickup truck when dealing drugs. Though his girlfriend drove the truck occasionally, Angel Hernandez was the primary driver. An officer saw the truck parked on a public street in front of Hernandez's residence. The officer crawled under the truck and attached a GPS tracker. The officer did not have a warrant to attach or use the device. The GPS tracker was accurate to 50 yards, but could not relay a precise address nor transmit a signal from an enclosed area like a garage.
The officers learned that Angel Hernandez's brother, Jose Hernandez, was supposed to drive the truck from Texas to southern California to pick up a large load of methamphetamine. They used the tracker to follow the truck to the pick-up point. Other officers then watched Jose Hernandez load several packages into the truck. They stopped him for a traffic violation and obtained consent to search the truck. The search revealed 20 pounds of methamphetamine. Jose Hernandez claimed that both the placement and the use of the GPS tracker violated the Fourth Amendment, requiring suppression of the drugs.
The U.S. Court of Appeals for the Fifth Circuit rejected this claim, siding with the majority of courts to hold that the use of a tracker to follow a suspect on open roads does not violate the Fourth Amendment and does not require a warrant. The court also rejected a claim that placement of the tracker was improper because the truck was parked on the street near Hernandez's house. Hernandez claimed that the truck was within the curtilage of the home. The court stated that a car parked on a public street is never within the home's curtilage.
Another federal court of appeals struck down evidence obtained by continuous, month-long tracker monitoring, creating a division of authority in federal courts. See prior issues of Xiphos for discussion of United States v. Maynard, 615 F.3d 544 (D.C. Cir. 2010). The United States Supreme Court will consider the issue in the fall term in the case of United States v. Jones, No. 10-1259 (U.S. June 27, 2011). For now, the strong majority of courts hold that there is no expectation of privacy barring attachment of a GPS tracker to the underside of a vehicle located in a public place and no expectation of privacy in the movements of the monitored vehicle as it travels in open areas and public roads.
State v. Coleman, ___ Kan. ___, ___ P.3d ___ (No. 101621, filed 08/12/11). A Reno County Deputy stopped a car between Hutchinson and Wichita 12:30 a.m. for speeding. The rental agreement had expired two days previous, but the driver claimed he had renewed it over the phone. Five minutes into the stop, the deputy discovered the driver was on parole, and was informed that police had "specific knowledge" that the driver was moving cocaine between Wichita and Hutchinson. A KDOC parole officer requested that the driver be detained for a search. The parole officer arrived 35 minutes to an hour later, put the driver in handcuffs, and found $1,035 in cash on the driver and cocaine and cocaine sales paraphernalia in the vehicle. The district court denied suppression, holding the search was based on reasonable suspicion. The Supreme Court agreed, saying the expired rental agreement, in combination with Coleman's parolee status and the reports that it was likely that Coleman was engaged in drug transportation, provided the deputy with reasonable suspicion of criminal activity, justifying a temporary detention and allowing further investigation. However, it found the duration of the detention was too long. The deputy did not have the statutory authority to arrest the driver as a parole violator, and had no grounds to arrest him for any other reason prior to the parole officer conducting the search that turned up the incriminating evidence. Quite simply put, the deputy had "no reasonable and legal basis for detaining Coleman while the officers waited for the parole officer to arrive at the scene." Additionally, the court held that an expired rental agreement, by itself, does not leave the driver with a lesser expectation of privacy in the vehicle and does not constitute reasonable suspicion to detain the driver.
United States v. Ludwig, 641 F.3d 1243, 1251, 2011 WL 1533520 (10th Cir. 2011). A trooper stopped Ludwig for speed. The brief encounter gave the trooper reasonable suspicion to believe that Ludwig was transporting drugs and the trooper deployed his drug detection dog for a sniff of the exterior of Ludwig's car. The sniff revealed a fabricated metal hidden compartment containing 11.3 pounds of ecstasy. Ludwig hired Steven Nicely, who frequently testifies in drug seizure cases. Mr. Nicely claimed that the dog was not reliable because his method of calculation suggested that the dog had a reliability rate of 58%. He also alleged that the dog was cued by the trooper. The Court of Appeals held that "a positive alert by a certified drug dog is generally enough, by itself, to give officers probable cause to search a vehicle." The court noted that the prosecution expert presented evidence that the dog had been certified twice in the preceding year by the California Narcotic Canine Association, a leading certification and training organization. The court recognized that the certification process tests for handler cuing. The court also rejected Mr. Nicely's claim that the trooper had cued the dog to respond to the drugs (contained in the not-yet-seen hidden compartment). The court also found that the trial court did not err in accepting the reliability calculations of the prosecution expert. The court also accepted the testimony of the prosecution expert that there was not any evidence of cuing the dog. Although the trial court declined to credit Mr. Nicely's calculations, the appellate court commented that even Mr. Nicely's calculation of 58% reliability would have been sufficient to establish probable cause to search.
United States v. Harrison, ___ F.3d ___, 2011 WL 1782961 (10th Cir. 2011). Federal agents watched Harrison's apartment over several months after receiving a tip that Harrison sold drugs to a gun runner. Unable to develop probable cause for a warrant, the agents decided to try a knock and talk. When Harrison came to the door, the agents identified themselves and told Harrison that they received a tip that there were drugs and a bomb inside the apartment and that their boss had sent them to investigate the danger to the community. After assuring Harrison that he had legal authority to consent to a search of his girlfriend's apartment and assuring him that they were not worried about a small bag of weed, Harrison consented to a search. Agents arrested him after finding a gun hidden in a wall. Harrison asserted that his consent was not valid because officers tricked him into believing that he was in danger. The prosecution argued that the bomb comment was meant to suggest that the agents believed that there was a bomb in the apartment, not that Harrison was a bombing target. The Circuit held the state failed to satisfy its burden of showing valid consent to enter. Courts have long considered trickery and ruses as factors in evaluating the voluntariness of consent under the Fourth Amendment. Typically, a false statement from an undercover officer or confidential informant about the purpose of a visit to a drug distribution location is permissible. Other kinds of ruses, such as claiming to be there to investigate a water leak, or claiming to be investigating a fictitious crime, are viewed more skeptically. The appellate court relied on a trial court finding that the false statements in this case implied that a bomb may have been planted in the apartment and that Harrison was in danger. The court also observed that the assurance that the officers were not interested in a small bag of weed "only further emphasized that bombs, not drugs, were the focus of their concern." Officers must be cautious that any ruse used to gain entry to a home does not give the impression that the occupant has no choice but to invite the officer in. The court noted that consent will not likely be valid when police trickery is so extreme that it deprives the occupant of the ability to make a fair assessment of the need to surrender his privacy.
Wisconsin v. St. Martin, 2011 WI 44 , 2011 Wisc. LEXIS 334 (6/22/11). Defendant battered his live-in girlfreind. She went to the police station to report the battery, and told police that her boyfriend was dealing cocaine. Police went to the residence and arrested him for the battery. They removed him from the residence, and got her consent to search, finding drugs and cash. Police then obtained a warrant and seized the items. Defendant alleged the evidence should be suppressed based on Georgia v. Randolph. The Wisconsin Supreme Court disagreed. It said that Randolph is to be construed narrowly. Although the language therein explaining the holding is very helpful, the rule stated in Randolph does not apply in this case because we conclude that St. Martin was not physically present at what the United States Supreme Court called the "threshold colloquy." This case closely resembles the facts presented in the Matlock case. The consent given by St. Martin's co-tenant was valid, and as in the Matlock case, that consent rendered the search constitutionally permissible because it cannot be trumped by an objection from an absent tenant. The cocaine and currency seized in the initial search of the attic is therefore admissible evidence.
State v. Jackson, ___ Kan.App.2d ___, ___ P.3d ____ (No. 104309, filed 07/29/11). El Dorado police served a narcotics search warrant at residence of Marla Davenport. The warrant specifically provided for the search of Davenport and any other persons living at the residence. Jackson, a social guest of Davenports, was present during the warrant service. An officer saw three or four purses lying on the floor in the kitchen and began to search them without asking any questions. He found methamphetamine and paraphernalia in Jackson's purse. She claimed it should have been suppressed, and the Court of Appeals agreed. Adopting the notice test, the court held the officer was on notice that the purse was not subject to the warrant. The notice test has two major elements, the notice element and a relationship exception, which have not been applied uniformly in the jurisdictions where the test governs. The notice test generally requires actual or reasonable constructive notice to police that an object within the premises may not be subject to the warrant or, without such notice, police may assume that the object is subject to the warrant. Police are authorized to search the personal effects of a guest who is more than just a casual visitor if the circumstances suggest that there is a relationship between that person and the illegal activities described in the warrant. Applying the notice test to the uncontroverted facts, the Court held the State did not meet its burden to demonstrate the search of the social guest's purse was lawful. The State failed to rebut the reasonable assumption that three or four purses lying on a kitchen floor during a social gathering attended by three or four women were owned by the guests rather than by the female occupant of the residence.
State v. Gilbert, ___ Kan. ___, ___ P.3d ___ (No. 100105, filed 07/15/11). Brian A. Gilbert was the passenger in a parked car he did not own. Law enforcement officers saw him in the vehicle and confirmed there was an outstanding warrant for his arrest. He was taken into custody, and the car was searched incident to his arrest. Inside the car, drugs and drug paraphernalia were discovered. The State concedes the search was unconstitutional. The dispositive issue is whether a passenger who does not own or have a possessory interest in the vehicle may challenge the vehicle's search incident to the passenger's arrest. The Court of Appeals held Gilbert had standing to contest the search under Brendlin v. California, 551 U.S. 249, 127 S. Ct. 2400, 168 L. Ed. 2d 132 (2007) (traffic stop is a seizure of a passenger as well as the driver). State v. Gilbert, No. 100,150, 2009 WL 2902575, at *5 (Kan. App. 2009) (unpublished opinion). It reversed Gilbert's convictions and ordered suppression of the evidence seized in the vehicle search. The State petitioned this court for review. The Supreme Court held Gilbert lacks standing to challenge the vehicle search under Rakas v. Illinois, 439 U.S. 128, 99 S. Ct. 421, 58 L. Ed. 2d 387 (1978) (person aggrieved by an illegal search and seizure only through introduction of evidence obtained by search of third-person's premises has not had his or her Fourth Amendment rights infringed), and reversed.
State v. Powell, ___ Kan.App.2d ___, ___ P.3d ____ (No. 102749, filed 06/24/11, reversed No. 102749, filed 06/06/14). Powell stole and damaged a police car and other property. Police obtained a warrant to collect blood and tissue from Powell, but failed to mention in their search warrant affidavit that blood and tissue were found in the police car. Powell tried to have DNA match testimony excluded, but the Court rejected his attempts, holding the Leon good faith exception applied because police actually obtained a warrant.
Davis v. United States, 556 U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 09-11328, filed 06/16/11.) Officer Curtis Miller arrested Petitioner Willie Davis for using a false name during a routine traffic stop. Incident to the arrest, Officer Miller searched the vehicle and discovered a gun. Davis was subsequently charged with being a convicted felon in possession of a firearm. At trial, Davis made a motion to suppress the gun as evidence, but the district court denied the motion and let the evidence come in. While Davis's appeal was pending, the Supreme Court decided Arizona v. Gant, holding that searches like the one conducted in Davis's case violate the Fourth Amendment. Davis argued on appeal that the retroactive application of Gant to his case should result in exclusion of the gun as evidence. The Eleventh Circuit Court of Appeals ruled against Davis. Davis appealed. The Supreme Court affirmed, finding Leon applied. The Court reasoned that suppression would do nothing to deter police misconduct in these circumstances, and because it would come at a high cost to both the truth and the public safety.
State v. Orlaske, ___ Kan.App.2d ___, ___ P.3d ____ (No. 103379, filed 06/10/11, pet for rev. filed 7/11/11). Choking and knee strikes to dislodge drugs the suspect was trying to swallow were reasonable actions based on the circumstances, and the warrantless search was justified by exigent circumstances.
State v. Ralston, ___ Kan.App.2d ___, ___ P.3d ____ (No. 103358, filed 06/10/11, pet. for rev. filed 7/7/11). A passenger in an stolen car that crashed while fleeing police has no reasonable expectation of privacy to challenge the search of her purse, which was located in the stolen car. The purse was abandoned property. Accordingly, the district court did not err in admitting Ralston's identification and the methamphetamine found in her purse.
Kentucky v. King, 561 U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 09-1272, filed 05/16/11). Police officers in Lexington, Kentucky, followed a suspected drug dealer to an apartment complex. They smelled marijuana outside an apartment door, knocked loudly, and announced their presence. As it turns out, they were at the wrong apartment. Officers set up a controlled buy of crack. The suspect went into an apartment complex and police were trying to catch up to him when heard a door shut. One officer radioed that the suspect entered an apartment on the right, but the entering officers did not hear it. They focused on the apartment on the left, where they detected the odor of burning marijuana. As soon as the officers began knocking, they heard noises coming from the apartment; the officers believed that these noises were consistent with the destruction of evidence. The officers announced their intent to enter the apartment, kicked in the door, and found respondent and others. They saw drugs in plain view during a protective sweep of the apartment and found additional evidence during a subsequent search. The trial court admitted the evidence holding that exigent circumstances—the need to prevent destruction of evidence—justified the warrantless entry. The Supreme Court of Kentucky reversed. The court assumed that exigent circumstances existed, but it nonetheless invalidated the search because the police should have foreseen that their conduct would prompt the occupants to attempt to destroy evidence. The Supreme Court reversed, holding that the conduct of the police prior to their entry into the apartment was entirely lawful, and police did not violate the Fourth Amendment or threaten to do so. In such a situation, the exigent circumstances rule applies. Rejecting the "police-created exigency" doctrine, the Court stated, "Occupants who choose not to stand on their constitutional rights but instead elect to attempt to destroy evidence have only themselves to blame for the warrantless exigent-circumstances search that may ensue."
State v. Kramer, 2011 WL 768034 (unpublished, Kan. App. February 25, 2011). Eric Kramer was stopped for displaying a tag that was not on file. The deputy who stopped Kramer noticed signs of impairment and conducted field sobriety tests, which Kramer failed. Kramer refused a preliminary breath test and was taken into custody. At trial, the court granted Kramer’s motion to suppress the evidence resulting from the traffic stop because, although the deputy who conducted the stop testified at trial regarding other suspicious activity of Kramer, the deputy’s express reason for stopping Kramer was because his license tag was not on file. The issue was whether the information from dispatch that a vehicle's tag is not on file would provide an officer with a reasonable and articulable basis for believing that a violation of K.S.A. 2008 Supp. 8-142, failure to register a vehicle, had occurred thus justifying a stop. The Court of Appeals found in this instance that it did. Reversed and remanded with directions.
State v Walker, ___ Kan. ___, ___ P.3d ___ (No. 99457, filed 04/01/11). A pedestrian flagged down a Kansas City Kansas police officer at approximately 6 p.m. and, through interpreters, told the officer "a black male wearing a black shirt and black shorts," burglarized his pickup. The suspect was last seen walking eastbound on Central Avenue. The officer found a person matching the description of the suspect sitting a bus stop about two blocks away and approached, told him he matched the description of a burglary suspect, and asked for identification. The parties disagree about how exactly the detention and search occurred, but the suspect, Walker, had a warrant and drugs on his person. He was arrested and convicted for possession of cocaine and marijuana. Walker claimed the officer had no reason to detain him based on the inadequate suspect description so the evidence should have been suppressed. The Supreme Court disagreed. It did not buy the State's argument that this was a voluntary encounter, but found that the facts and circumstances rose to reasonable suspicion to detain. It further held that running a warrants check on a pedestrian stopped based upon reasonable suspicion was constitutionally permissible based on Arizona v. Johnson and State v. Morlock.
Crowther v. State, ___ Kan.App.2d ___, ___ P.3d ____ (No. 102923, filed 03/25/11). In this K.S.A. 60-1507 action, Crowther claimed his trial counsel should have filed a motion to suppress evidence. Crowther was convicted of several violent felonies. Missouri police seized his computer with a search warrant and incriminating evidence was found therein. Crowther claimed the officers seized information not described in the warrant in violation of State v. Rupnick, 280 Kan. 720, 125 P.3d 541 (2005) and United States v. Walser, 275 F.3d 981, 986 (10th Cir. 2001), cert. denied 535 U.S. 1069 (2002), which hold that officers conducting searches (and the magistrates issuing warrants for those searches) cannot simply conduct a sweeping, comprehensive search of a computer's hard drive. 280 Kan. at 732. In rejecting Crowther's arguments, the Court of Appeals found that counsel's performance was not defective because the trial in this case predated Rupnick, and counsel could not have foreseen future changes in the law. Furthermore, the court said that while the files recovered from the computer were not specified in the warrant, were somewhat damaging to Crowther and may not be covered by Leon due to the vague warrant, there was plenty of other evidence to support the verdict and Crowther did not adequately address the prejudice aspect of his claim. The court described the general rule regarding computer searches as: "The Fourth Amendment to the United States Constitution requires that a search warrant describe the things to be seized with sufficient particularity to prevent a general exploratory rummaging in a person's belongings. A warrant for computer searches must affirmatively limit the search to evidence of specific types of material. Officers must be clear as to what it is they are seeking on the computer and conduct the search in a way that avoids searching files of types not identified in the warrant."
State v. Kacsir, ___ Kan.App.2d ___, ___ P.3d ____ (No. 102559, filed 02/25/11, pet. for rev. filed 3/28/11). Defendant drove onto the shoulder of Interstate-70 in Topeka and stopped her car less than 100 hundred yards in front of a parked Trooper. Seeing this, the trooper pulled up and turned on his emergency lights. The trooper later testified he approached Defendant to see if she was having mechanical problems with her car, if she needed directions, or if there was a medical emergency. The defendant was intoxicated and was convicted of DUI. She alleged all evidence should have been suppressed because there was no reason to stop her. The Court of Appeals held it was not a voluntary encounter because the Trooper turned on his emergency lights, but was a valid public safety stop because the trooper gave specific reasons for stopping and approaching the car.
People v. Xinos, 11 S.O.S. 782 (Los Angeles District Court of Appeals), reported in Metropolitan News-Enterprise, Wednesday, February 9, 2011 Page 3. Police violated the Fourth Amendment rights of a drunk driving/vehicular manslaughter suspect by downloading data from the car’s sensing and diagnostic module without a warrant, the Sixth District Court of Appeal ruled yesterday. The justices threw out George Xinos’ conviction for vehicular manslaughter in the 2006 death of Marcus Keppert, who was killed crossing a San Jose street. The court ordered that Xinos either be retried on that charge or resentenced on the remaining counts of failing to stop at the scene of an accident, driving under the influence with injury, and driving with an unlawful blood alcohol level with injury. Witnesses testified that Keppert was struck by a white SUV that left the scene. One witness said he pursued the vehicle and called its license plate number in to 911, then saw Xinos exit the vehicle looking dazed and in shock. Xinos was arrested a short time later when a police officer, investigating a suspicious vehicle report, made contact with Xinos, who admitted that the car was his and that he had been drinking. The officer, who was aware of the hit-and-run collision and saw that the vehicle was damaged and had blood on it, had it towed to a police warehouse for further inspection. Xinos was booked and had his blood drawn after refusing a breath test at the scene of the arrest, and had a blood alcohol contest of 0.18 about two hours after the crash, which an expert later testified meant it was about 0.22 when the collision occurred. About a year later after the crash, police—at the request of prosecutors—downloaded the data contained in the SUV’s SDM, also known as an event data recorder. The data showed that the vehicle accelerated during the five seconds prior to the collision, and a prosecution expert estimated that the vehicle reached a speed of between 69 and 76 miles per hour right before the crash, and struck Keppert at a speed of about 60 or 61 mph. The impact could have been avoided by swerving two feet to the left, the expert opined, or by going slower. In denying the defense motion to suppress, Santa Clara Superior Court Judge Marc Poche held that no warrant was required because the defendant lacked a reasonable expectation of privacy in the SDM data, and that there was no search in the Fourth Amendment sense. The judge also ruled that if there was a search, it fell within the automobile exception to the warrant requirement because the officers had probable cause. Jurors found the defendant guilty on all counts. Poche sentenced him to two years in prison for manslaughter, plus a five-year enhancement under "Courtney’s Law" for fleeing the scene of that crime. Imposition of sentence on the other counts was stayed. But Justice Franklin Elia, writing for the Court of Appeal, said Xinos had a reasonable expectation of privacy in the data contained within the module. "This case is fundamentally distinguishable from the cases where technology is used to allow law enforcement to capture information that a person is knowingly exposing to the public," the justice wrote, such as those where tracking devices are installed in a container so that signals can be followed to a location. With the SDM, Elia explained, data is generated for the personal use of the motorist. "While a person’s driving on public roads is observable, that highly precise, digital data is not being exposed to public view or being conveyed to anyone else," the justice said. He went on to conclude that at the time of the download, long after the crime occurred and the investigation concluded, the officers lacked probable cause. He noted that before the data was downloaded, the officers believed that the defendant had not been speeding and could not have prevented the collision because the victim’s visibility was limited.
United States v. Basher, No. 09-30311, 2011 U.S. App. LEXIS 1064 (9th Cir. Decided January 20, 2011). Campers heard gunshots and saw a camp fire in a "dispersed" or undeveloped campsite on the bank of the South Fork River, reported it to the Sheriff. A burn ban was in effect. The Sheriff responded, and pulled in front of a pickup near a tent, seeing a box of shotgun shells on the seat of the truck. He announced "Sheriff's Office," and asked the occupants of the tent to come out with their hands visible. They did. He asked where the gun was. After feigning ignorance, one told the other to get the gun, and produced a sawed-off shotgun. He was charged with a federal firearms violating and moved to suppress the evidence and confession arguing, among other things, that entry onto the curtilage of the tent violated his Fourth Amendment rights. The Ninth Circuit rejected the argument, saying that an undeveloped campsite area under these facts does not have a curtilage. If the area is visible to other campers, it is also visible to the police and does not deserve higher protection under the Fourth Amendment.
State v. Thomas, ___ Kan. ___, ___ P.3d ___ (No. 98123, filed 01/24/11). A Junction City police officer made contact with Thomas thinking that she was someone else whom he was attempting to serve with a subpoena. Once he figured out she was not the person he was looking for, he asked if he could fill out a field interview card (FIC). Thomas agreed. When she gave her address, the officer recognized it from a prior call where Thomas's husband reported that Thomas had left with a drug dealer. Twice during the encounter, the officer told Thomas that she was not under arrest and was free to go. At the conclusion of the 5-minute encounter, the officer shook hands with Thomas and said good-bye. He then performed a Columbo pivot and got consent to ask a few more questions. After quizzing her about drug use, which she denied, he called for back-up and for a female officer. He told Thomas to be honest with him, and she eventually admitted to possessing two crack pipes she said she found on the ground. She was prosecuted for possession of the crack in the pipes, and alleged that her detention was not supported by reasonable suspicion. The district court denied her motion to suppress and the Court of Appeals affirmed. The Supreme Court reversed, holding the encounter after the Columbo pivot was not consensual and was not supported by reasonable suspicion. It said that while a call for back up does not necessarily equate to detention, this officer's "call for back-up, when combined with his other conduct, would convey to a reasonable person that he or she was not free to refuse to answer Brown's questions or otherwise terminate the second stage of the encounter."
United States v. Wilkinson, ___ F.3d ___ (10th Cir. No. 10-6024, filed 01/18/11). Lawton police had a tip that a black male in a red pickup would arrive in town at a certain time to deliver drugs. Undercover officers saw a black male driving a red pickup in Lawton, and noticed the pickup had a plastic cover over its temporary paper tag. They asked a marked unit to stop the vehicle, and later found drugs in it. Wilkinson claimed the evidence should have been suppressed because the marked unit did not know why he was stopping the vehicle. The Circuit rejected his argument, saying the stop was proper because the "collective knowledge" of the officers supported the stop, even if the requesting officer does not communicate the information to the other officer. They also held the collective knowledge doctrine applies to traffic stops for misdemeanors, as well as stops for felonies.
United States v. Polly, 630 F.3d 991 (10th Cir. 2011). Oklahoma City police were surveilling an auto repair shop they suspected was trafficking narcotics. Polly started to pull into the shop, but after possibly seeing all the police cars around it, decided to go straight. An undercover officer recognized Polly from prior drug transactions, and began following him. After seeing Polly speed through a residential neighborhood, he called a marked unit to stop the car for speeding and unlawfully crossing a solid yellow line. Polly denied having any drugs in the car or on his person. During a consensual frisk (to put him on the back seat of the police car to issue his tickets), the officer found crack cocaine in Polly's pocket. Polly argues that the search of his person was unreasonable, both because the traffic stop was unjustified and because the resulting detention exceeded the scope of the stop. The Circuit rejected his claims, finding that speeding and crossing the double-yellow line during an aborted left turn was sufficient reasonable suspicion to stop the vehicle. Further, they held that the pat-down was consensual, and once the officer felt immediately apparent contraband, he was justified in going in Polly's pocket. As to the search of Polly's car thereafter, the Court rejected the government's claim it was a valid search indicent to arrest based on Gant, but upheld it as a vehicle exception.
People v. Diaz, ___ P.3d ___ (Cal. S. Ct. No. S166600, filed 01/03/11). The Fourth Amendment to the United States Constitution permits law enforcement officers, approximately 90 minutes after lawfully arresting a suspect and transporting him to a detention facility, to conduct a warrantless search of the text message folder of a cell phone they take from his person after the arrest. Such a search is valid as being incident to a lawful custodial arrest. California police arrested Diaz for selling drugs to an informant. Diaz denied it. Officers looked at his text messages, and found a message on his cell phone stating, "6 4 80." Based on his training and experience, the officer interpreted the message to mean "[s]ix pills of Ecstasy for $80." Within minutes of discovering the message (and less than 30 minutes after the cell phone's discovery), the officer showed Diaz the message, who then admitted participating in the sale of Ecstasy.
State v. Grebe, ___ Kan.App.2d ___, ___ P.3d ____ (No. 104144, filed 10/28/11). Grebe was convicted and sentenced for various offenses, including DUI third and fourth and sentenced to serve a controlling 59-month sentence. Grebe argues the district court erred by failing to consider community service as an option to paying the mandatory DUI fines. The state argued that the 59-month sentence made community service an impossibility considering the requirement in K.S.A. 8-1567(j) that community service be completed in one year. The Court of Appeals agreed and affirmed.
State v. Malmstrom, ___ Kan. ___, ___ P.3d ___ (No. 101604 filed 03/25/11). Where the legislature permits the existence of conflicting statutory provisions prescribing different sentences to be imposed for a single criminal offense, the rule of lenity requires that any reasonable doubt as to which sentence applies must be resolved in favor of the offender.
Thompson v. North American Stainless, 556 U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 09-291, filed 01/24/11). Petitioner Eric L. Thompson, a metallurgical engineer formerly employed by Respondent North American Stainless ("Stainless"), sued Stainless under Section 704(a) of Title VII of the Civil Rights Act of 1964, alleging that Stainless fired him in retaliation for a gender discrimination complaint his then-fiancée (and now wife) Miriam Regalado filed against Stainless with the Equal Employment Opportunity Commission ("EEOC"). The Sixth Circuit found that Thompson did not have standing to sue Stainless and dismissed his complaint. Thompson argued that Title VII not only prohibits third-party retaliation but also gives third-party victims standing to sue, primarily because this furthers Title VII's goal of eliminating discrimination and is consistent with the EEOC's longstanding interpretation of Title VII. In opposition, Stainless argued that Section 704(a) does not give those third parties standing to sue the allegedly retaliating employer because permitting such an action would contradict congressional intent and unnecessarily curtail employers' ability to manage their workforces. The United States Supreme Court agreed with Thompson, and reversed the 6th Circuit.
January 1, 2010 through December 31, 2010 (or thereabouts)
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."
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.
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.
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."
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.
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.
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."
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.
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.
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.
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).
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.
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.
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.
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.
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")."
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.
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.
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.
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.
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).
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.
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.
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
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
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
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
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
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
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
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
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.
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.
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
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.
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
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
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
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.
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
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.
January 1, 2008 to December 31, 2008 (or thereabouts)
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
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
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
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
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
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
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
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
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
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
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.
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
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
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
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
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
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
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
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
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
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).
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.
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
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."
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.
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.
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.
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."
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. Frazier also claimed that his ass hurt from the rape. Investigating officer obtained an arrest warrant and arrested Van Cleave. The prosecutor later dismissed the charges. On Van Cleave's false arrest claim, the court granted defendants summary judgment, finding that statements of traumatized victims, even when they have been drinking, can be sufficient to establish probable cause to arrest the suspect identified by the victim. Based on the totality of the circumstances in this case, the warrant was valid.
United States v. Rhiger, 315 F.3d 1283 (10th Cir. 2003). Police trailed a suspected methamphetamine manufacturer while he drove around and obtained ingredients for a batch. The officers then surveilled him while he entered a house, and waited about an hour before they noticed the familiar fumes of a meth lab cook in progress. They entered the residence without a warrant, arrested the occupants, secured the residence, and sought a search warrant. Defendant, a social guest, had standing to challenge the search of his friend's home, but a cooking meth lab is a danger to the public and constitutes an exigent circumstance excusing a warrantless entry. But see State v. Blair, 31 Kan.App.2d 38, 573 P.2d 1134 (2002)(odor of ether coming out of an attached garage was insufficient does not give rise to probable cause); State v. Bowles, 28 Kan. App. 2d 488, 18 P.3d 250 (2001).
Traffic Stops
United States v. Cervine, ___ F.3d ___ (10th Cir. No. 02-3169, filed 10/22/2003). 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.
Marshall v. Columbia Lea Regional Hospital, ___ F.3d. ___ (10th Cir. No. 02-2184, filed 9/29/2003). There is no right for a citizen to continue without stopping when a police officer turns on their emergency lights. "Drivers are required to respond promptly when a police officer signals them to stop. Neither belief in innocence nor apprehensions regarding the police justify failure to obey a lawful order. Cf. United States v. Villa-Chaparro, 115 F.3d 797, 802 (10th Cir. 1997) (driver's failure to stop in response to flashing police lights contributes to a finding of reasonable suspicion)."
ADA
Barnes v. Gorman, 536 U.S. 181, 122 S. Ct. 2097, ___ L.Ed.2d ___ ( No. 01-682, filed 6/17/02). Punitive damages are not available in private suits brought under section 202 of the Americans With Disabilities Act, which prohibits discrimination against the disabled by public entities, and section 504 of the Rehabilitation Act, which prohibits discrimination against the disabled by recipients of federal funding, including private organizations. Case involves a paraplegic who sued the Kansas City Police Board for injuries sustained during an arrest by an off-duty officer. Verdict in this case was approximately $1.2 million punitive damages& $1 million in actual damages. Decisions below Gorman v. Bartch, 152 F3d 907 (8th Cir. 1998). Gorman was wheelchair bound and wore a catheter. While in Westport, he and a friend got thrown out of a club after a fight. Gorman and his friend approached police officers (working off-duty security for Westport) for assistance, and were told to leave. Gorman refused and was arrested, and later convicted, for trespass. Gorman claimed he instructed officers on how to transport him, but they did not listen to him. The transport van did not have wheelchair locks. Officers took Gorman out of his wheelchair and placed him on a narrow bench in the van and seatbelted him in. The seatbelt did not hold Gorman upright, and had been placed across his already-full urine bag, causing it to back up into his kidneys and causing permanent damage. They also used Gorman's own belt to strap him to the mesh behind the bench to hold him upright. Gorman released the seatbelt over concern of the pressure it was placing on his urine bag. The other belt came undone, and Gorman ended up on the floor, exploding his urine bag and covering him with his own urine. The transport officers stopped the van and tied Gorman to a support for the duration of the trip. Gorman's wheelchair was damaged during the trip. The officers all claimed that Gorman never offered transport instructions and was drunk and belligerent during the whole encounter. The jury obviously rejected the officer's claims.
Toyota v. Williams, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 00-1098, filed 1/8/2002). The ADA standard of "disability" concerns the claimant's personal life activities and not work activities.
Arrest
Reinschmidt v. City of Wichita, Sedgwick County Case No. 99C11312. Case settled out of court for damages in excess of $1 million. Class action on practice of jailing people on municipal warrants on Wichita's "Time to Pay" docket. See related case of In Re Eighteenth Judicial District, ___ Kan. ___, ___ P.3d ___ (No. 81,491, filed 7/26/2000). District judge did not have jurisdiction to release approximately 80 city prisoners being held on a "pay before release" status. Opinion hints that municipal judges do not have indirect contempt powers. See also In Re Horst, ___ Kan. ___, ___ P.3d ___ (No. 85,189, filed 12/15/2000)("we are troubled with the actions of the Wichita Municipal Court Judges")(dicta).
United States v. Neff, ___ F3d ___ (10th Cir. No. 01-4184, filed 8/22/2002). Use of handcuffs during a Terry stop did not turn it into an arrest. Officers received reliable tip that suspect was intoxicated and possibly carrying a gun - a "short-type rifle" concealed in his jacket sleeve. Officers saw suspect, who quickly walked away. Officers stopped him with guns drawn and handcuffed him. They found shotgun shells in his jacket. He told officers the gun was in his house. A consent search did not yield the gun, but officers found a sawed-off shotgun in a pickup suspect had walked by. Defendant admitted it was his. Curiously, the government did not argue there was probable cause to arrest.
United States v. Jones, ___ F.3d ___ (10th Cir. No. 01-1327, filed 4/2/2002). No-knock entry by federal agents into motel room was improper, but there was a warrant based on probable cause allowing officer to arrest Jones' for bank robbery, and Jones' station house confession occurring approximately an hour after his arrest was not the product of an illegal detention. Therefore, the confession can be admissible if voluntary.
State v. Hamman, 273 Kan. 89, 41 P.3d 809 (2002). A Coffey County Deputy Sheriff was driving in Lyon County and saw the defendant swerving in her vehicle. He requested a Lyon County Deputy, then stopped the vehicle. The Lyon County deputy worked the DUI. The defendant contended all evidence should be suppressed because the Coffey County Deputy did not have jurisdiction to stop her. The district court denied the motion to suppress, and the supreme court affirmed, holding the Coffey County Deputy, acting as a private person can arrest pursuant to K.S.A. 2001 Supp. 22-2403(2)(crime committed in person's presence). Here, safety reasons also justified the stop. See also State v. Miller, 257 Kan. 844, 896 P.,3d 1069 (1995)(Osage City officer arrested suspect in Lyndon based on informant's statement that suspect was involved in burglary and theft. Illegal arrest outside the officer's jurisdiction does not necessarily require dismissal; remanded for consideration of whether exigent circumstances existed, which is appropriate where the "citizen" is a law enforcement officer) overruling State v. Hennessee, 232 Kan. 807, 658 P.2d 1034 (1983)(Pratt County sheriff exceeded his jurisdiction by executing arrest warrant in Stafford County. Although the KBI and Stafford County sheriff were present, there was no request for Pratt County sheriff to come make the arrest); State v. Green, 257 Kan. 444, 901 P.2d 1350 (1995)(Ottawa police were in fresh and continuous pursuit of an armed robbery suspect who they eventually arrested in Johnson County. K.S.A. 22-2401a(2)(B) does not require the "pursuit" to start inside the city limits. If the officer acts without unnecessary delay, pursues continuous and uninterrupted, and pursues the only lead available reasonably contemporanously in time to the crime, the officer is in fresh pursuit.)
http://www.kscourts.org/Cases-and-Opinions/opinions/supct/2002/20020308/86509.htm
Civil & Criminal Liability
State v. Sprinkle, ___ Kan.App.2d ___, ___ P.3d ___ (No. 87,297, filed 12/27/2002). Neither a defendant's general knowledge regarding criminal behavior gained through experience as a law enforcement officer, nor the authority granted to such an officer as a matter of course, establishes a violation of an implied fiduciary relationship or a more general abuse of trust justifying an upward dispositional departure at sentencing. Thus, the district court erred in an upward departure for 14 counts of residential burglary committed by a police officer.
Olsen v. Layton Hills Mall, 312 F.3d 1304 (10th Cir. 2002). Plaintiff tried to purchase items from a store on two different credit cards. One was erroneously reported as stolen, and the other declined the charge based on erroneous typing by the store clerk. Based on a security guard's representation and a call to Discover®, which gave him erroneous information, an officer arrested the plaintiff, who suffers from obsessive compulsive disorder (OCD). Plaintiff claims he was roughed up during cuffing, and suffered panic attacks during booking and while incarcerated. Once police learned of the mistake, they dismissed the charges. Defendants were granted summary judgment. The 10th Circuit ruled there was disputed issues of material fact on the false arrest, excessive force and Eighth Amendment claims precluding summary judgment. The stated the test for excessive force as requiring the court to assess "the reasonableness of an officer's conduct from the perspective of a reasonable officer on the scene, acknowledging that the officer may be force to make split-second judgments in certain difficult circumstances." Id. at 1314. The 10th Circuit affirmed summary judgment for the city on Plaintiff's deliberate indifference claim, holding there was insufficient evidence to demonstrate the officer's actions were based on a city policy or failure to train on dealing with OCD patients. However, there was sufficient evidence to go to the jury on a similar claim against the county and its jail staff - who took away Plaintiff's medication when he complained of a panic attack.
Doran v. City of Kansas City, case No. unknown (USDC Kan 2002). A man shot during a police raid was awarded more than $2 million by a federal jury. The jury also found that the Kansas City Board of Police Commissioners had been "deliberately indifferent" in allowing its officers to illegally enter homes when serving search warrants. David Doran a 52-year-old mechanic was shot twice in the 1998 raid on his home. Officers looking for a methamphetamine lab battered in the front door and Doran was shot after he came out of his bedroom with a gun. Officers found no methamphetamine but did recover a small amount of marijuana which Doran acknowledged using. Jurors declined to hold the officer who shot Doran responsible for his injuries. They chose instead to penalize more senior police officials for failing to supervise and properly train officers in the raid. Jurors faulted the "ram officer" for his actions at the front door and the Sgt. for failing to properly supervise the raid. Police became interested in Doran in late July 1998 when an anonymous caller said that methamphetamine was being manufactured and sold at Doran's home. Several days later police collected trash from near the house and found drug residue. Members of the Police Department's Street Narcotics Unit raided Doran's home about 10 p.m. on Aug. 11 1998 At first they called out "Police! Search warrant!" and then smashed the door with a battering ram. Doran who was asleep in his bedroom said that he did not hear the announcement but was awakened by the battering ram. Other officers on the raid testified that they did not hear the officer's call though attorney Dale Close noted that they were wearing respirators over their faces.
Gonzales v. City of Castle Rock, 366 F3d 1093 (10th Cir. 2004). A substantive due process claim, based on police officers' failure to enforce a restraining order, is not actionable where refusal to enforce the order did not affirmatively create or enhance any danger. Claimant effectively alleged a procedural due process claim with respect to her entitlement to enforcement of the order by every reasonable means. [NOTE: Supreme Court granted review. See Case Watch List for further details].
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. [Note: on remand, district court held reliance on statute was not objectively reasonable because defendants failed to comply with statute. 10th Circuit affirmed - Roska v. Sneddon, ___ F.3d ___ (10th Cir. No. 04-4086, filed 2/0/06)].
Ruiz v. McDonnell, ___ F3d ___ (10th Cir. No. 01-1010, filed 8/8/2002). A claim under 42 U.S.C. section 1983, based on a state's failure to conduct the requisite background and insurance checks prior to an infant's death at a licensed day care facility, is not actionable where no state conduct created or increased the danger to the child.
Crime Victims
State v. Cox, ___ Kan.App.2d ___, ___ P.3d ___ (No. 86852 filed 3/15/2002). Attorney fees incurred by the crime victim were not properly awarded as restitution against the defendant. The fees were for advice rendered to recover losses, and had no causal link between the victim's damages and the defendant's unlawful conduct. But see State v. Hunziker, ___ Kan.App.2d ___, ___ P.3d ___ (No. 86861 filed 2/22/2002), where a different panel reached an opposite conclusion.
DUI
City of Hutchinson v. Davenport, 30 Kan.App.2d 1097, 54 P.3d 532 (2002). Odor of alcohol on one's breath alone does not constitute reasonable suspicion to conduct a traffic stop. Defendant reported to the Hutchinson police station to check on his daughter who had been arrested. Lt. Henderson detected the odor of alcohol on defendant's breath and told him not to drive. Defendant said he was walking. The Lt. thought that strange because Defendant had also stated he lived in Wichita. He told the Lt. he was walking. After waiting about five minutes, defendant got into his vehicle and left. The Lt. had someone else stop the defendant. The court held odor alone was insufficient to support the stop.
State v. Crawford, 275 Kan. 492, 67 P.3d 115 (2003)(reversing Court of Appeals). Reckless driving stop based on anonymous complaint with relatively no corroboration was based on reasonable suspicion of criminal activity. "We need not evaluate the safety stop possibility, as we hold the stop was legal as a Terry stop under the same rationale and comparable facts of State v. Slater, 267 Kan. 694, 986 P.2d 1038 (1999)"(an anonymous tip of DUI). Dispatcher broadcast a "reckless" driver in a black Dodge pickup with Oklahoma license plates traveling northbound from the county line on 169 Highway. Officer stopped a vehicle matching that description eight minutes later without witnessing any violations. Driver turned out to be DUI. Court of Appeals held all evidence of DUI should be suppressed. Judge Lewis dissented. Supreme Court reversed the Court of Appeals finding that conclusory allegation of reckless driving, along with a specific vehicle description, rises to level reasonable suspicion for a stop.
State v. Hamman, ___ Kan. ___, ___ P.3d ___ (No. 86,509 filed 3/8/2002). A Coffey County Deputy Sheriff was driving in Lyon County and saw the defendant swerving in her vehicle. He requested a Lyon County Deputy, then stopped the vehicle. The Lyon County deputy worked the DUI. The defendant contended all evidence should be suppressed because the Coffey County Deputy did not have jurisdiction to stop her. The district court denied the motion to suppress, and the supreme court affirmed, holding the Coffey County Deputy, acting as a private person can arrest pursuant to K.S.A. 2001 Supp. 22-2403(2)(crime committed in person's presence). Here, safety reasons also justified the stop.
State v. Bell, ___ Kan.App.2d ___, ___ P.3d ___ (No. 86,552 filed 3/15/2002). Court reaffirms five-year look back rule that prior convictions occurring within five years of the date of the current offense are counted to determine severity level of offense.
State v. Anthony, ___ Kan.App.2d ___, ___ P.3d ___ (No. 87373 filed 3/15/2002). District courts retain jurisdiction to modify felony DUI sentences because the sentencing guidelines do not apply.
Evidence
State v. Schuette, ___ Kan. ___, ___ P.2d ___ (No. 876798, filed 4/19/2002). Foundation for admitting caller ID information is witness testimony that the caller ID device is or has in the past been operating properly. Scientific data that the machine operated properly is not required. Since the data shown on the display is electronically generated without human involvement, there is no "declarant," and the names and numbers on the display are not hearsay. Furthermore, production of the device is not required by the best evidence rule. It is not a "writing," and the data cannot be downloaded or printed. Defendant's argument "is akin to contending that a clock must be produced before a witness can testify as to the time he or she observed an accident."
United States v. Harrison, ___ F3d ___ (10th Cir. No. 01-2225, filed 7/182002). A statement to a law enforcement officer, by an alleged victim of child sexual abuse, was admissible under the catch-all hearsay exception, based on adequate indicia of reliability, even where the alleged abuse occurred more than four years earlier, and the declarant had a possible motive to lie.
First Amendment
PETA v. Rasmussen, 298 F.3d 1198 (10th Cir. 2002). Defendant’s summary judgment motion was denied since demonstrators had a clearly established right to engage in expressive activity on the sidewalk adjacent to a school if no material disruption occurred. PETA members conducted a number of demonstrations outside a junior high school protesting the display of a McDonald’’s flag. Lt. Rasmussen’’s threat to arrest the protestors if they did not leave was based on a Utah statute allowing for the arrest of persons adjacent to any school whose presence or acts interfere with the peaceful conduct of the activities or disrupt the school. Unfortunately, this statute applied only to institutions of higher education and not the junior high school in question. The court noted that content-neutral speech restrictions in a public forum are subject to strict scrutiny, while content-neutral restrictions in a non-public forum are subject to a reasonableness test. While schools are not a traditional public forum, sidewalks are. Therefore, the heightened first amendment standard applied. In a public forum, the government may only impose content––neutral time, place and manner restrictions that: (a) serve a significant government interest; (b) are narrowly tailored to advance that interest; and (c) leave open ample alternative channels of communication. The Supreme Court has recognized a significant government interest in preventing expressed activity that materially disrupts class work or involves substantial disorder or invasion of the rights of others. The government’’s interest is limited to preventing actual or imminent disturbances, not fear, apprehension or speculation that a disturbance will occur. Quiet and peaceful protests must be tolerated.
First Unitarian Church of Salt Lake City v. Salt Lake City Corp., ___ F3d ___ (10th Cir. No. 01-4111, filed 10/09/2002). A city's prohibition of expressive activity on a public pedestrian easement retained by the city (a public forum), after the sale of a portion of a downtown public street to a religious organization, violated the First Amendment.
Summum v. City of Ogden, ___ F3d ___ (10th Cir. No. 01-4022, 7/19/2002). Under the free speech clause of the First Amendment, a city cannot display a Ten Commandments monument on its property, while declining to display a "Seven Principles" monument proffered by the Summum religion.
Watchtower Bible and Tract Society of New York Inc. v. Village of Stratton, Ohio, et al., cert. granted ___ U.S. ___, (No. 00-1737, filed 6/17/2002). Provisions of a village ordinance, making it a misdemeanor to engage in door-to-door neighborhood "canvassing" without first registering with the mayor's office and receiving a permit, violate the First Amendment as it applies to religious proselytizing, anonymous political speech, and the distribution of hand bills.
Department of Housing and Urban Development v. Rucker, 535 U.S. 125, 122 S.Ct. 1230, ___ L.Ed.3d ___ (2002). 9th Circuit held that HUD one strike provision for drug activity codified in 42 U.S.C. § 1437d(l)(6) and 24 C.F.R. 966.4(f)(12)(i)(B) and (l)(2)(ii)(B) cannot be enforced against innocent tenant. 237 F.3d 1113 (2001). United States Supreme Court reversed, holding the plain language of the statute unambiguously requires lease terms that give local public housing authorities the discretion to terminate the lease of a tenant when a member of the household or a guest engages in drug-related activity, regardless of whether the tenant knew, or should have known, of the drug-related activity. Congress' decision not to impose any qualification in the statute, combined with its use of the term "any" to modify "drug-related criminal activity," precludes any knowledge requirement. Because "any" has an expansive meaning--i.e., "one or some indiscriminately of whatever kind,"-any drug-related activity engaged in by the specified persons is grounds for termination, not just drug-related activity that the tenant knew, or should have known, about. The Ninth Circuit's ruling that "under the tenant's control" modifies not just "other person," but also "member of the tenant's household" and "guest," runs counter to basic grammar rules and would result in a nonsensical reading. Rather, HUD offers a convincing explanation for the grammatical imperative that "under the tenant's control" modifies only "other person": By "control," the statute means control in the sense that the tenant has permitted access to the premises. Implicit in the terms "household member" or "guest" is that access to the premises has been granted by the tenant. Section sect. 1437d(l)(6)'s unambiguous text is reinforced by comparing it to 21 U.S.C. sect. 881(a)(7), which subjects all leasehold interests to civil forfeiture when used to commit drug-related criminal activities, but expressly exempts tenants who had no knowledge of the activity, thereby demonstrating that Congress knows exactly how to provide an "innocent owner" defense. It did not provide one in sect. 1437d(l)(6). Given that Congress has directly spoken to the precise question at issue, other considerations with which the Ninth Circuit attempted to bolster its holding are unavailing, including the legislative history, the erroneous conclusion that the plain reading of the statute leads to absurd results, the canon of constitutional avoidance, and reliance on inapposite decisions of this Court to cast doubt on sect. 1437d(l)(6)'s constitutionality under the Due Process Clause. Lower court decisions: 203 F.3d 627 (9th Cir. 2000), reversed 237 F.3d 1113 (9th Cir. en banc 2001).
http://www.law.cornell.edu/supct/html/00-1770.ZO.html
Thomas v. Chicago Park District, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 00-1249, filed 1/15/2002). A municipal park ordinance requiring a permit before conducting any event involving more than 50 people, was content-neutral and was a reasonable time, place & manner regulation of a public park. The ordinance specified sufficient standards for denial of an application, required any denial to be acted upon within 28 days, and provided an appeals procedure. The ordinance is not an unconstitutional prior restraint based on the content of speech, and the government thus need not comply with Freedman v. Maryland, 380 U.S. 51.
State v. Pollard, 273 Kan. 706, 44 P.3d 1261 (2002). Although a "suspended imposition of sentence" is not a conviction under M.R.S. 557.011, the court applies the Kansas definition of "conviction" to criminal possession of a firearm under K.S.A. 21-4204(a)(3), and concludes the district court erred in dismissing the state's case. Federal law (18 U.S.C. § 921(a)(20)) contains a choice of law clause stating the law of the jurisdiction in which the proceeding is held determines whether a disposition is a "conviction," but K.S.A. 21-4204 contains no such choice of law provision and the more logical rule is to treat all persons coming before Kansas courts the same in order to address the problem of keeping weapons from certain felons and to advance the police interest of protecting the public.
Yale v. City of Independence, 846 S.W.2d 193, 196 (Mo. banc 1993). Pursuant to Missouri statute, persons who receive a suspended imposition of sentence can deny arrest and conviction. M.A.B. v. Nicely, 909 S.W.2d 669, 671 (Mo. banc 1995) (citing MO. REV. STAT. § 491.050); Yale v. City of Independence, 846 S.W.2d 193, 196 (Mo. banc 1993) (word "conviction," standing alone, does not include the disposition of a "suspended imposition of sentence" either in the City of Independence personnel manual or, for that matter, in legislative enactments where it may be used as a predicate for punitive action in a collateral proceeding)". A passage from Yale illustrates the conflict between the legislative intention in providing for suspended imposition of sentence and the requirement that those receiving SIS's be required to register:
The obvious legislative purpose of the sentencing alternative of suspended imposition of sentence is to allow a defendant to avoid the stigma of a lifetime conviction and the punitive collateral consequences that follow. That legislative purpose is further evidenced in statutes concerning closed records; under § 610.105, RSMo 1986, if imposition of sentence is suspended, the official records are closed following successful completion of probation and termination of the case. Closed records are made available only in limited circumstances and are largely inaccessible to the general public. § 610.120, RSMo Supp. 1991. Thus, with suspended imposition of sentence, trial judges have a tool for handling offenders worthy of the most lenient treatment. Worthy offenders have a chance to clear their records by demonstrating their value to society through compliance with conditions of probation under the guidance of the court.
Yale, 846 S.W.2d at 195.
United States v. Bayles, ___ F.3d ___ (10th Cir. No. 01-4092/4097, filed 11/15/2002). A conviction for possessing a firearm while subject to a domestic violence protective order did not violate the Second Amendment or the Commerce Clause, and the district court abused its discretion in granting a downward departure based on purported conduct outside the heartland of such offenses.
Evidence
United States v. Turner, ___ F.3d ___ (10th Cir. No. 01-3049, filed 4/2/2002). District court erred in denying defendant a Daubert hearing challenging admission of a fingerprint expert's testimony a latent crime scene print matched the defendant's. Defendant wished to challenge uniqueness of fingerprints. District court relied on the court's prior "observation" that, "It is undisputed that hair analysis, unlike fingerprint identification and DNA analysis, is not conclusive." Williamson v. Ward, 110 F.3d 1508 1520 n.13 (10th Cir. 1997). However, the failure to conduct a Daubert hearing was harmless error because eyewitness testimony was sufficient to convict the defendant of the robberies.
United States v. Plaza, ___ F.Supp. ___ (E.D. Pa. No. 98-362-10, filed 1/7/02). Expert testimony that a capital murder defendant's fingerprints "match" latent prints at a crime scene is inadmissible under Fed.R.Evid. 702 and Daubert v, Merrell Dow Pharmaceuticals Inc., 509 U.S. 570 (1993), and Kuhmo Tire Co. v. Carmichael, 526 U.S. 137 (1999). The court did allow admission of expert testimony on fingerprint evidence falling short of a "match." The court took judicial notice of the fact that each person's fingerprints are unique and permanent, but balked at holding the reliability of established fingerprinting techniques for detecting a match between a latent print and a print rolled from the suspect. NOTE: Judge Pollack has reconsidered and reversed himself! His lengthy and thorough opinion can be found at: 2002 WL 398163; __F.Supp.2d__; U.S. Dist Court Eastern District Pennsylvania; March 13, 2002.
Forfeiture
State v. $1489.00 in U.S. Currency, Cylop-1 Night Vision Device, ___ Kan.App.2d ___, ___ P.3d ___ (No. 88,154, filed 12/27/2002). Subsections (j) and (k) of K.S.A. 60-4112 set out two ways in which a rebuttable presumption of forfeiture eligibility can arise. Under (j), a presumption that an item constitutes proceeds of the crime or was used or intended to be used to facilitate the crime arises if the item is found in proximity to contraband or an instrumentality of the crime. Under (k), a rebuttable presumption will arise regarding any item of a defendant's property if it can be shown that the defendant's ownership of the item was enabled by and roughly contemporaneous with the criminal conduct. If an item is forfeitable, yet the court is prevented from seizing the item because of one of the circumstances listed in 60-4115(a)(1) through (7), then the court "shall" forfeit substituted property of the defendant up to a comparable value under K.S.A. 60-4115(a). Here, cash found in defendant's pocket, and a night vision scope, could be forfeited in place of defendant's exempt residence.
United States v. 16328 S. 43rd E. Ave., ___ F3d ___ (10th Cir. No. 00-5117, filed 1/10/ 2002). Under 21 USC 881(a)(7)'s innocent owner defense, evidence that property owner killed marijuana plant when she found it on her property, confiscated seeds and threatened her tenant with eventual eviction if he did not desist, is not sufficient to defeat the consent element.
Dusenbery v. United States, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 00-6567, filed 1/8/2002). The FBI sent notice of forfeiture of cash by certified mail addressed to petitioner in care of the federal correctional institution (FCI) where he was incarcerated; to the address of the residence where he was arrested; and to an address in the town where his mother lived. The Sixth Circuit held notice was validly given. Petitioner disagrees. The United States Supreme Court held the FBI's notice of the cash forfeiture satisfied due process. The straightforward reasonableness under the circumstances test of Mullane v.Central Hanover Bank & Trust Co., 339 U.S. 306, 313, not the balancing test approach of Mathews v. Eldridge, 424 U.S. 319, 335, supplies the appropriate analytical framework for the due process analysis. Contrary to petitioner's argument, Mennonite Bd. of Missions v. Adams, 462 U.S. 791, 796-797, says that a State must attempt to provide actual notice, not that it must provide actual notice. No prior case requires actual notice. The Due Process Clause does not require heroic efforts by the Government to assure the notice's delivery, nor does it require the Government to substitute petitioner's proposed procedures that would have required verification of receipt for those in place at the FCI while he was there. Affirming 223 F.3d 422.
United States v. Wagoner County Real Estate, Rural Route 5, Box 340, ___ F3d ___ (10th Cir. No. 00-7059, filed 1/02/02). Federal law (18 U.S.C. 983(d)) preempts state homestead provision and allows forfeiture of a principal residence if the owner cannot successfully establish the innocent owner defense.
Jury Instructions
State v. Campbell, ___ Kan.App.2d ___, ___ P.2d ___ (No. 83,602, filed 1/18/2002). Battery against a law enforcement officer pursuant to K.S.A. 21-3412(a)(2) (and assault against a law enforcement officer) are both general intent crimes. To prove battery, the state merely needs to prove the defendant intentionally caused physical contact with another person, not any specific person, and not with any specific intent.
Interrogation
State v. Cobb, ___ Kan.App.2d ___, ___ P.2d ___ (No. 85309, filed 4/12/2002). Detective's tactical deception and making religious references did not render confession involuntary.
State v. Boorigie, ___ Kan. ___, ___ P.2d ___ (No. 85,604, filed 3/8/2002). Defendant had been charged with murder and arson and retained counsel. Fire Marshall investigators met with defendant to interview him. They asked if he was represented, and he said no and agreed to an interview. Statements he made during the interview were admitted at trial. The Kansas Supreme Court held the investigators violated Boorigie's Fifth and Sixth Amendments rights. Although Boorigie he said he wasn't represented by counsel, investigators knew that he had previously retained counsel. Once a defendant retains counsel, he may not be questioned without counsel present (even if they have withdrawn at the time of the interview), unless the defendant initiates the interview. Although the interview generated statements that were used at trial in violation of defendant's rights, those statements did not amount to confessions, and independent evidence introduced through other witnesses was overwhelming, so it was harmless error to introduce defendant's statements. "[W]hen an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights. . . . [A]n accused . . . having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges or conversations with the police." Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 68 L.Ed.2d 378, reh. denied 452 U.S. 973 (1981).
Miscellaneous
Nelson v. Geringer, ___ F3d ___ (10th Cir. No. 00-8039/93, 7/3/ 2002). Employees dismissed from Wyoming National Guard positions, for failing to meet the state's newly enacted residency requirements for their positions, are entitled to reinstatement because the residency requirement violates the Privileges and Immunities Clause.
Columbus v. Ours Garage & Wrecker Service, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 01-419, filed 6/20/2002). 49 U.S.C. sect. 14501(c)(1) which preempts prescriptions by "a State [or] political subdivision of a State ... related to a price, route, or service of any motor carrier ... with respect to the transportation of property," does not totally prohibit cities from regulating non-consent towing operations. The exception in 14501(c)(2)(A), refers only to the "authority of a State." Section 14501(c) does not bar a State from delegating to municipalities and other local units the State's authority to establish safety regulations governing motor carriers of property, including tow trucks. Reading sect.14501(c)'s exceptions in combination and context, however, leads the Court to conclude that sect. 14501 does not provide the requisite "clear and manifest indication that Congress sought to supplant local authority." The area Congress sought to deregulate was state economic regulation; the exemption in question is for state safety regulation. Local regulation of tow-truck prices, routes, or services that is not genuinely responsive to safety concerns garners no exemption from preemption. The Court expresses no opinion on whether Columbus' particular regulations, in whole or in part, qualify as exercises of "safety regulatory authority" or otherwise fall within sect. 14501(c)(2)(A)'s compass. This question, which was not reached by the Sixth Circuit, remains open on remand. 257 F.3d 506, reversed and remanded.
Murphree v. United States Bank of Utah, ___ F3d ___ (10th Cir. No. 01-4106, 6/19/2002). Because an individual reporting suspected criminal conduct to police authorities is entitled to qualified immunity for erroneous statements made to police officials, a defamation claim based on a bank employee's concern that appellant was attempting to fraudulently cash a check, is remanded for consideration of that issue.
Willis v. Kansas Highway Patrol, ___ Kan. ___, ___ P.2d ___ (No. 87173, filed 3/8/2002). Accident reports required by K.S.A. 8-1611 & 8-1612 are not criminal investigation records exempt from disclosure pursuant to K.S.A. 45-221(1)(10). However, where the KHP withheld production of the accident report in a fatality DUI accident, the district court did not err in refusing to grant a peremptory order of mandamus or denying the plaintiff attorney fees based on their good faith argument they constituted criminal investigation records exempt from disclosure. In this case, the district court ordered release of the accident report, and that ruling was not challenged on appeal.
Search & Seizure
State v. Gormley, ___ Kan.App.2d ___, ___ P.3d ___ (No. 88,634, unpublished decision filed 12/6/2002). Before impounding the car of a DUI suspect, police must ask the suspect his desired disposition of the vehicle and follow his wishes if practical to do so.
State v. Graham, ___ Kan.App.2d ___, ___ P.3d ___ (No. 86,167, filed 5/31/02). Plain view supported officer's search of car when he stopped it to arrest defendant on a probation violation warrant. Officer saw marijuana in plain view on the floor of the car when the driver got out. Search was legal even though officer testified he searched the car "incident to arrest."
State v. Payne, ___ Kan. ___, ___ P.3d ___ (No. 87,009, filed April 19, 2002). Officers saw Payne get into a murder victim's car. The conducted a felony car stop. While patting down the suspect, an officer testified he felt what he recognized instantly was a crack cocaine pipe. Evidence was properly admitted under the plain feel exception.
United States v. Gallegos, ___ F.3d ___ (10th Cir. No. 02-4012, filed 12/11//2002). Defendant-was convicted of possession of methamphetamine with intent to distribute and carrying or possessing a firearm during and in relation to a drug trafficking offense. He appealed contending that officer's failure to give adequate time after knocking & announcing made the entry illegal. The 10th Circuit held that no objectively reasonable officer could believe that a 5-10 second wait was adequate where the warrant was served at 4:00 a.m., the officers saw no lights on inside the residence and heard no activity after knocking, and the bedrooms were believed to be on the second floor of the residence. It reasoned that the abrupt entry violated the purposes of the knock and announce rule, which are, (1) permitting individuals to comply with the law by peaceably permitting officers to enter their homes; (2) avoiding the unnecessary destruction of property that attends a forcible entry; and (3) providing an opportunity for occupants to "prepare themselves" for entry by law enforcement officers by, for example, "pull[ing] on clothes or get[ting] out of bed."
United States v. Tapia, ___ F.3d ___ (10th Cir. No. 02-1028, filed 11/8//2002). Interaction with and initial detention of defendant on a passenger bus was constitutional, and proper consent was obtained for seizure of contraband from the baggage compartment of the bus, thus evidence and statements were incorrectly suppressed by the district court.
Arturo D. v. California, ___ Cal.Rptr. ___, cert. denied, ___ U.S. ___ (No. 01-9812, filed 10/21/2002) & Hinger v. California, ___ Cal.Rptr. ___, cert. denied, ___ U.S. ___, (No. 01-10107, filed 10/21/02). Supreme Court declined to hear two California cases asking whether officers can freely search your car without getting a warrant if you don't show them identification or registration papers. Both California cases allowed such a search, saying officers could search anywhere documents "reasonably may be expected to be found."
State v. Richmond, ___ Kan.App.2d ___, ___ P.2d ___ (No. 88,157, filed 8/30/2002). Defendant KBI agents violated defendant's Fourth Amendment rights by searching her purse without consent. They had information that defendant was selling drugs in Pittsburg. They had a local sheriff pull her over so they could seek consent to search her car. She consented to the search, but kept her purse with her, and denied consent two or three times. One of the agents finally told her to leave her purse on the trunk and step away, which she did. They searched and found cocaine. The Court of Appeals affirmed the district court's judgement suppressing the evidence, finding the purse was outside the scope of consent. Curiously, the court, without extended analysis, gave short shrift to the state's argument that probable cause and exigent circumstances justified a warrantless search of the purse.
Roska v. Peterson, ___ F3d ___ (10th Cir. No. 01-4057, filed 09/05/2002). Defendants, police officers and social workers, were 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 law was clearly established on May 28, 1999, that warrantless, no-knock entries into the home were unconstitutional in the absence of exigent circumstances, and that the warrantless seizing of a child without prior notice and a hearing or exigent circumstances violated the plaintiff's Fourth and Fourteenth Amendment rights.
State v. Crawford, ___ Kan. ___, ___ P.3d ___ (No. 88250, filed 4/18/2003)(reversing Court of Appeals). Reckless driving stop based on anonymous complaint with relatively no corroboration was based on reasonable suspicion of criminal activity. "We need not evaluate the safety stop possibility, as we hold the stop was legal as a Terry stop under the same rationale and comparable facts of State v. Slater, 267 Kan. 694, 986 P.2d 1038 (1999)"(an anonymous tip of DUI). Dispatcher broadcast a "reckless" driver in a black Dodge pickup with Oklahoma license plates traveling northbound from the county line on 169 Highway. Officer stopped a vehicle matching that description eight minutes later without witnessing any violations. Driver turned out to be DUI. Court of Appeals held all evidence of DUI should be suppressed. Judge Lewis dissented. Supreme Court reversed the Court of Appeals finding that conclusory allegation of reckless driving, along with a specific vehicle description, rises to level reasonable suspicion for a stop.
United States v. Neff, ___ F3d ___ (10th Cir. No. 01-4184, filed 8/22/2002). Use of handcuffs during a Terry stop did not turn it into an arrest. Officers received reliable tip that suspect was intoxicated and possibly carrying a gun - a "short-type rifle" concealed in his jacket sleeve. Officers saw suspect, who quickly walked away. Officers stopped him with guns drawn and handcuffed him. They found shotgun shells in his jacket. He told officers the gun was in his house. A consent search did not yield the gun, but officers found a sawed-off shotgun in a pickup suspect had walked by. Defendant admitted it was his. Curiously, the government did not argue there was probable cause to arrest.
United States v. Balderama-Federico, ___ F3d ___ (10th Cir. No. 01-1542, unpublished, filed 08/21/2002). Objective reasonableness suggests that defendant did not revoke consent to search duffel bags in a car trunk. The officer had returned the defendant's driver's license and the registration, then asked if he could search for weapons or drugs. The defendant opened the trunk, showing duffle bags, said "see", then started to close the trunk. The officer said "wait" and pushed the trunk back open. Inside the duffel bags he found 180 pounds of marijuana. The court held the trooper's belief consent had not been revoked was objectively reasonable because (1) the defendant verbally consented to a search of his vehicle, including the trunk and the contents thereof, and thereafter did not at any time verbally revoke, or limit, that consent; (2) after consenting, the defendant produced the key to the trunk of the car and did, himself, raise the trunk lid to an open position where the trooper could see the duffel bags; (3) at this juncture, the defendant simply said, "See," and, with his hand, according to the trooper, began to close the lid; (4) in response to the defendant's "See" statement, the trooper, who had not completed his search of the trunk, having only seen, and not examined, the duffel bags, responded: "Wait;" (5) thereafter the defendant stopped lowering the trunk lid, therefore this is not a case where a defendant actually closes the trunk lid and locks it; and (6) the defendant did not verbally, or otherwise, contest or object to the trooper's request that he "wait." The court also rejected the contention that defendant was illegally detained at the time of consent. A traffic stop can become a consensual encounter requiring no reasonable suspicion if the officer returns the license and registration and asks questions without further constraining the driver by an overbearing show of authority. United States v. West, 215 F.3d 171, 1176 (10th Cir. 2000).
United States v. Pena-Sarabia, ___ F3d ___ (10th Cir. No. 01-3228, 7/19/2002). Consent for a warrantless search of a home was freely and intelligently given, and was not produced through coercion or duress, and defendant was eligible for the "safety valve" provisions of U.S.S.G. section 5C1.2 where she did not induce a co-defendant's firearm possession.
United States v. Drayton, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 01-631, 6/17/2002). The Fourth Amendment does not require police officers to advise bus passengers of their right not to cooperate and to refuse consent to searches. Here three officers boarded a stopped bus with the driver's consent. One stayed at the front kneeling on the driver's seat, not blocking the aisle. The other two went to the back and worked their way forward. One questioned passengers, while the other stood behind him. The one questioning passengers used a normal speaking voice, stayed beside or behind the passenger, and would have allowed them to leave if they wanted to. All officers in plain clothes, carried concealed weapons, and displayed badges. The one questioning passengers identified himself as a Tallahassee Police Officer and showed his badge. He asked about their travel plans, told passengers they were conducting bus interdiction in an attempt to deter drugs and illegal weapons transportation, and asked if the passengers had any bags. If they identified bags, he asked "Do you mind if I check it.?" Upon affirmative response, he would check the bag. The two defendants were both wearing baggy clothes and heavy jackets. Both pointed to one green bag as theirs, where no drugs were found. The officer asked if they had any drugs or weapons in their possession, and asked one defendant "do you mind if I check your person?" That defendant said, "sure," and cooperated by leaning forward and opening his jacket. The officer patted down his jacket and pockets, including his waist area, sides and upper thighs. He felt hard objects similar to drug packages, and arrested that defendant. He then asked the other defendant, "Mind if I check you?" The second defendant lifted his hands about eight inches from his legs. A pat down detected drug packages in the same area. He was arrested as well. The first defendant had 483 grams of cocaine, and the second 295 grams. The court of appeals erred in suppressing this evidence because the defendants consented, and that consent was not invalidated by a coercive atmosphere created by the officers. "In a society based on law, the concept of agreement and consent should be given a weight and dignity of its own. Police officers act in full accord with the law when they ask citizens for consent. It reinforces the rule of law for the citizen to advise the police of his or her wishes and for the police to act in reliance on that understanding. When this exchange takes place, it dispels inferences of coercion."
United States v. Valles, ___ F3d ___ (10th Cir. No. 01-2265, filed 6/3/2002). Police had reasonable suspicion to stop appellant for a drug sniff of his luggage as he exited a train, based on details concerning the purchase of the ticket, fact that appellant was traveling under an alias, and observations of his behavior.
United States v. Davis, 290 F3d 1239 (10th Cir. 2002). Where the manifestation of resistance displayed by defendant was his insistence upon keeping the officers outside, and even the suspected victim of a disturbance was trying to prevent the officers from entering the residence, no exigent circumstances existed to justify a warrantless search of a home. Officers responded to a disturbance. A male in boxer shorts answered the door. He had alcohol on his breath. He told officers the disturbance was caused by disciplining his child. Officers asked where his wife was, and the male told them she was out of town. Then, the wife appeared, put her arms around the male, and said they had been arguing. The male kept trying to block officer's view of the scantily-clad female. Officers asked to enter, but were refused. They entered anyway, and eventually found cocaine in the house. The 10th Circuit held the evidence should have been suppressed because there were no exigent circumstances justifying a warrantless entry. "As contended by Mr. Davis, granting unfettered permission to officers to enter homes, based only upon a general assumption domestic calls are always dangerous, would violate the Fourth Amendment. See Stewart, 867 F.2d at 584-85 (observing facts particular to the specific case bear on the validity of the exigency)."
United States v. Salazar, ___ F.3d ___ (10th Cir. No. 01-3046, filed 3/14/2002). Officers ran tag on an Explorer in a motel parking lot. Registered owner had a warrant. Officers checked motel registration and focused on room 137. Found defendant and a woman who was not the registered owner of the Explorer. They searched the room with consent and found paraphernalia. The woman told the officers there were drugs in the Explorer. The officers confirmed by running a canine outside the vehicle. They obtained the keys, and searched the vehicle, finding 144.3 grams of methamphetamine. Defendant moved to suppress the evidence, claiming there were no exigent circumstances. The Tenth Circuit held that no exigent circumstances are required when there is probable cause to search a vehicle. Even if exigent circumstances might be required, here officers had reason to believe the registered owner was on the way to obtain the vehicle.
United States v. Higgins, 282 F3d 1261 (10th Cir. 2002). Where a house was uninhabited and in a dilapidated condition, and the defendant could not prove control over the premises, the defendant had no objectively reasonable expectation of privacy, even if he had a key to the gate and kept personal property in the house; sentences that relied upon government's guesswork as to quantity of methamphetamine were improper.
State v. Wilson, ___ Kan.App.2d ___, ___ P.2d ___ (No. 86,193, filed 1/18/2002). Officers cannot search someone just because they are present when a warrant is served. Exceptions to this rule are: (1) where people run when police enter; (2) where drugs or contraband are in plain view; (3) where the person appears to be armed, or (4) where the person appears to be involved in illegal activity. K.S.A. 22-2509 will be strictly construed against the government. In this case, the raid team entered the residence, put everyone on the floor, handcuffed them, then started asking folks who they were and why they were there. An officer asked to search Wilson, who replied, "You've got me in handcuffs, you can do whatever you want." The officer explained that wasn't exactly true - and that Wilson wasn't under arrest, just being detained, and he could refuse consent to search. Wilson then consented. Cocaine was found in his pocket. Wilson argued the cocaine should be suppressed because his consent was involuntary. The district court denied the suppression motion, but the Court of Appeals reversed. It said that since the officer testified that Wilson did not pose a reasonable threat (no visible weapons or bulges), that the officer did not observe drugs or contraband in plaint view, and did not reasonably suspect Wilson was involved in criminal activity, the officer illegally detained him and any consent was involuntary.
United States v. Arvizu, 534 U.S. 266, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002). The Ninth Circuit erred in totally discounting 7 of 10 factors cited by an officer to support a stop. The Ninth Circuit's stance that each observation by the officer was by itself "readily susceptible to an innocent explanation," thus entitling that factor to no weight, disregards well-settled law that the "totality of the circumstances" must be examined in each case, and reviewing courts must give due weight to factual inferences drawn by experienced, specially trained officers. Although each of a series of acts may be perhaps innocent in itself, taken together, and when assessed by a reasonable police officer, they may warrant further investigation. In this case, the 128.85 pounds of marijuana seized from defendant's minivan should not have been suppressed where the officer based his stop on these factors: (1) the minivan appeared to be attempting to avoid a border checkpoint near Douglas, Arizona; (2) the minivan triggered an alarm at about the time when border patrol agents perform a shift change, leaving the area unpatrolled; and several weeks prior to this stop, another border patrol agent stopped a minivan using the same route and saw the occupants throwing marijuana out the door;(3) No other vehicles were in the area, indicating the defendant's minivan was the one using rarely traveled roads and setting off the alarms; and it did not appear to be in the area for a picnic outing based on its location;(4) minivans are often used by drug smugglers; (5) as the minivan approached the officer, it slowed dramatically, from about 50-55 to 25-30 m.p.h.; (6) there were 5 occupants, a man driving, a woman in the front passenger seat, and three kids in the rear; (7) the driver appeared stiff and rigid, and refused to look at the officer; (8) the knees of the children in the back seat were unusually high, indicating their feet may have been propped up on some cargo; (9) after the officer began following the van, the children began waving at the officer in a stiff, mechanical manner that continued for approximately four to five minutes - as if they were being instructed to do so; and (10) the van registered to an address four blocks North of the United States border in an area notorious for alien and narcotics smuggling. Although each of these factors may suggest a family on a holiday outing, they also supply reasonable suspicion of criminal activity based on the totality of the circumstances.
United States v. Matthews, ___ F3d ___ (6th Cir. No. 00-5528, filed 1/10/2002). Suspect who fled, after officer asked him to stop, and committed trespass while attempting to flee, may not suppress evidence found after the trespass, even if the officer lacked reasonable suspicion to detain him in the first place.
United States v. Zimmerman, ___ F3d ___ (3d Cir. No. 01-1251, filed 1/4/2002). Allegations that defendant sexually harassed minors and may have shown them video clips of bestiality on the Internet is insufficient to support a search warrant for child pornography.
United States v. Spotts, ___ F3d ___ (8th Cir. No. 00-3741 01/03/2002). Police had reasonable suspicion to detain a known drug dealer who drove by another drug dealer's house, while police were executing a valid search on the house, where police spotted the drug dealer in front of the house one day before the search.
Sentencing
Atkins v. Virginia, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 00-8452, filed 6/20/2002). Atkins was convicted of capital murder and related crimes by a Virginia jury and sentenced to death. Affirming, the Virginia Supreme Court rejected Atkins' contention that he could not be sentenced to death because he is mentally retarded. The United States Supreme Court reversed, holding that executions of mentally retarded criminals are "cruel and unusual punishments" prohibited by the Eighth Amendment.
Traffic Stops
Miller v. City of Nichols Hills Police Department, ___ F.3d ___ (10th Cir. 2002). Upon calling in an expired license tag, Officer Jennings was informed that NCIC had the tag as being from a stolen vehicle. He initiated a felony stop procedure ordering Mrs. Miller and her two daughters, just twelve and thirteen, out of the vehicle at gunpoint and down on their knees. After being patted down and placed in a cruiser, they determined that this was a mistake due to improper programming of the computer. Because the officers were entitled to rely on the reasonably trustworthy information provided to them by the dispatcher, even though the information was later determined to be faulty or inadequate, the officers had probable cause to make the warrantless arrest. The excessive use of force issue went to a jury, which found for the defendants.
State v. Crawford, ___ Kan. ___, ___ P.3d ___ (No. 88250, filed 4/18/2003)(reversing Court of Appeals). Reckless driving stop based on anonymous complaint with relatively no corroboration was based on reasonable suspicion of criminal activity. "We need not evaluate the safety stop possibility, as we hold the stop was legal as a Terry stop under the same rationale and comparable facts of State v. Slater, 267 Kan. 694, 986 P.2d 1038 (1999)"(an anonymous tip of DUI). Dispatcher broadcast a "reckless" driver in a black Dodge pickup with Oklahoma license plates traveling northbound from the county line on 169 Highway. Officer stopped a vehicle matching that description eight minutes later without witnessing any violations. Driver turned out to be DUI. Court of Appeals held all evidence of DUI should be suppressed. Judge Lewis dissented. Supreme Court reversed the Court of Appeals finding that conclusory allegation of reckless driving, along with a specific vehicle description, rises to level reasonable suspicion for a stop.
State v. Hamman, ___ Kan. ___, ___ P.3d ___ (No. 86,509 filed 3/8/2002). A Coffey County Deputy Sheriff was driving in Lyon County and saw the defendant swerving in her vehicle. He requested a Lyon County Deputy, then stopped the vehicle. The Lyon County deputy worked the DUI. The defendant contended all evidence should be suppressed because the Coffey County Deputy did not have jurisdiction to stop her. The district court denied the motion to suppress, and the supreme court affirmed, holding the Coffey County Deputy, acting as a private person can arrest pursuant to K.S.A. 2001 Supp. 22-2403(2)(crime committed in person's presence). Here, safety reasons also justified the stop.
ADA
University of Alabama v. Garrett, ___ U.S. ___, 121 S.Ct. 955, ___ L.Ed.2d ___ (2001). The Americans With Disabilities Act (ADA) cannot be constitutionally be applied to state governments consistent with the Eleventh Amendment’s grant of immunity to state governments from lawsuit in federal court. Congress did not validly abrogate the states immunity.
Arrest
State v. Partridge, ___ Kan. App. 2d ___, ___ P.3d ___ (No. 86213, filed 10/19/2001). When a citizen-informant calls a dispatcher on her cell phone, identifies herself and reports that she is following a reckless driver, no additional or independent proof of reliability is necessary to support an investigative stop.
Overton v. Ohio, cert. denied, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (2001 (No. 00-9769)). Police had an arrest warrant for Desarie Overton for harboring drug dealers. The warrant was issued by a Toledo City Court, and signed by a clerk of the court, not a judge. Overton had refused to let officers in her home, so they kicked the door in and found her upstairs, along with some cocaine rocks wrapped in a $20 bill. An appeals court upheld Overton's conviction, refusing to invalidate the warrant. The Ohio Supreme Court refused to take the case. The United States Supreme Court denied certiorari, four justices explaining they denied cert. because the issue had already been decided, saying, ``The warrant is clearly inadequate under well-established Supreme Court case law,'' Justice Stephen Breyer wrote for the group.
United States v. Colon, ___ F.3d ___ (2d Cir. No. 00-1628, filed 05/14/2001). Caller information given to a civilian 911 operator working for the New York Police Department but not conveyed to the dispatching or arresting officer cannot be imputed to the arresting officer under the collective knowledge doctrine as a basis for reasonable suspicion to justify a search of defendant.
Atwater v. City of Lago Vista, 532 U.S. 318, 121 S.Ct. 1536, 149 L.Ed.2d 549 (2001). Motorists 4th Amendment right to be free from unreasonable search & seizure was not violated after she was arrested, handcuffed and taken to jail for failing to wear her seatbelt, failing to put her kids in seatbelts, driving without a license and failing to provide proof of insurance. The Fourth Amendment does not limit use of custodial arrests for a fine-only offenses committed in an officer's presence. Common law did not clearly prohibit an arrest in such a situation, nor did it limit arrests to only misdemeanors involving a breach of the peace. Affirms Fifth Circuit opinion 195 F.3d 242 (1999 CA-5 Tex.)(en banc)(three judges dissenting).
Battery
State v. Moore, 271 Kan. 416, 419, 23 P.3d 815 (2001). The bodily harm which can sustain a conviction for simple battery may be slight, trivial, minor, moderate, or mere bruising.
Civil & Criminal Liability
Stuart v. Jackson, ___ F3d ___ (10th Cir. No. 00-1295, filed 12/17/2001)(unpublished). District court did not err in denying defendant officers’ motion for judgment as a matter of law on unreasonable seizure handcuffing claims. Evidence indicated plaintiffs were handcuffed for over an hour during the search of their home, plaintiff were cooperative during the search, made no threats against the officers, were unguarded and unrestrained for about 15 minutes before being cuffed and detained, and were only cuffed and detained when they voiced their perception that searching officers were exceeding the scope of the warrant. Judgement for plaintiffs for $25,000 each was affirmed despite a lack of evidence of physical injury.
Livsey v. Salt Lake County, ___ F3d ___ (10th Cir. No. 00-4005 12/26/01). Under 42 U.S.C § 1983, a wife does not have a legitimate expectation that the information revealed by a police officer about her deceased husband would remain confidential.
Morris v. Dillard Dep't Stores, Inc., ___ F3d ___ (5th Cir. No. 00-30710, filed 12/26/01). A private merchant and private security officer, who arrested a plaintiff suspected of shoplifting, are not subject to federal liability under 42 U.S.C. 1983, provided the officer performed an independent investigation prior to arresting the suspect.
Holland v. Harrington, 268 F.3d 1179 (10th Cir. 2001), cert. denied ___ U.S. ___. Use of a SWAT team and pointing guns at children during a "dynamic entry" to arrest a suspect on misdemeanor assault & battery charges violated the Fourth Amendment. Right to be free from such an unreasonable search & seizure was clearly established, and where officers encountered no resistance, a reasonable officer should have known they were violating plaintiff's rights. Defendants were denied qualified immunity.
Smith v. Plati, ___ F.3d ___ (10th Cir. No. 99-1375, filed 7/30/2001). Bare allegation that public official had person arrested without probable cause or in retaliation for exercising First Amendment rights is insufficient to state a claim for civil rights violation under 42 U.S.C. 1983.
Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). Excessive force analysis is distinct from qualified immunity analysis. A finding of unreasonable force does not necessarily preclude an officer from being entitled to qualified immunity.
Estate of Willie Heard v. Miami County, ___ F.Supp. ___ (Case profiled in 11 KL 234, week of June 10-16, 2001). Government defendants pay $3.5 million and apologize to settle a claim where they shot decedent when entering the wrong house on a narcotics warrant. Decedent picked up an unloaded rifle, but witnesses disagreed about whether he pointed it at anyone.
State of Idaho v. Horiuchi, ___ F.3d ___ (9th Cir. No. 98-30149, filed 6/5/2001). The Supremacy Clause in the Constitution does not prohibit the State of Idaho from prosecuting an FBI sharpshooter, Lon Horiuchi, for alleged criminal actions in the shooting at Ruby Ridge.
State ex Rel Stovall v. Menely, ___ Kan. ___, 22 P.3d 124 (2000). Former sheriff's several procedural challenges rejected in suit to oust him from office for wilful misconduct (concealing theft of drug evidence) and two instances of perjury.
Hampton v. Dillard Department Stores, Inc., ___ F.3d ___ (10th Cir. No. 98-3011 & 98-3261, filed 4/24/2001), cert. denied ___ U.S. ___ (No. 01-842, 2/19/02). Evidence that department store security guards noted suspicious customers by race and noted plaintiff's race numerous times in incident report (calling her a "black female" 12 times in a 2-page report) is sufficient to support jury verdict of a pretextual stop and support a cause of action for a civil rights violation under 42 USC 1981. 10th Circuit upholds jury verdict of $56,000 in compensatory damages and $1.1 million in punitive damages.
Nichols v. Chacon, 110 F.Supp.2d 1099 (W.D. Ark ____). Officer was not entitled to qualified immunity when he arrested suspect for disorderly conduct for repeatedly "flipping officer the bird." Suspect had a constitutional right to his "crude, insensitive, offensive and disturbing" display, but it was not obscene and gave the officer no basis to arrest. See also Cook v. Board of Wyandotte Co. Comm., 966 F. Supp. 1049 (1997)(same).
Baptiste v. J.C. Penny Co., Inc., 147 F.3d 1252 (10th Cir. 1998). Statements to officers by store security personnel were insufficient to establish probable cause for an arrest when customer presented receipts for items for which she was accused of stealing and officers could have watched videotape showing all "suspicious" activities store security guards said they saw. Tape was actually consistent with customer's story.
Didzerekis v. Stewart, 41 F.Supp.2d 840 (N.D. Ill ____). Officers and city could be liable for equal protection violation where officers were called to a violent domestic but delayed entry into the residence for 40 minutes.
Camilo-Robles v. Hoyos, 151 F.2d 1st Cir. _____). Supervising police officials were not entitled to qualified immunity when they failed to take action against a police officer with known violent propensities. Those officials had actually fired him, but he was reinstated after a successful appeal. Officials discovered some later mental abnormalities, and referred him to the departmental psychiatrists, but officer was cleared for duty and returned back to work.
Trigalet v. City of Tulsa, 239 F.3d 1150 (10th Cir. 2001). A municipality cannot be held liable for an injury caused by its police officer, even if the City's actions can be characterized as arbitrary, or conscience-shocking, if there are no unconstitutional acts by an individual officer. Fleeing suspect in a stolen van ran a red light and killed three people. Applying County of Sacramento v. Lewis, 523 U.S. 833 (1998), court found no reckless disregard by the officer, or intent to cause the decedents harm, when continuing the pursuit. Even if policies, training and supervision were unconstitutional, no liability attaches to the city if the officer did not commit a constitutional violation.
Domestics
HUSBAND CHARGED WITH COMPUTER TRESPASS Divorce attorneys have been warning that criminal charges would begin appearing in divorce cases involving computer trespass between spouses, and a Michigan husband has in fact been charged because he installed surveillance software called eBlaster on his wife's computer to permit him to track her computer usage and to read all of her e-mail and messages. Steven Paul Brown was charged with installing an eavesdropping device, eavesdropping, using a computer to commit a crime and having unauthorized computer access. He faces possible jail time of up to five years
Driver's License Hearings
Johnson v. Kansas Department of Revenue, ___ Kan. App. 2d ___, 27 P.3d 943 (2001)( No. 85,342, filed 7/20/01). KDR's motion for reconsideration filed after the 10-day appeal period has elapsed is untimely, and the hearing officer is without jurisdiction to amend the suspension order.
Aten v. Kansas Department of Revenue, ___ Kan.App.2d ___, 22 P.3d 1077 (2000). When dealing with a suspected DUI under age 21, a law enforcement officer must give both implied consent advisories (0.02 and 0.08) Advisories are not inconsistent, and reasonable person in driver's shoes cannot mistake the prohibited conduct and understand the maximum penalties.
Linenberger v. Kansas Department of Revenue, ___ Kan. App. 2d ___, 20 P.3d 1290 (2001). Officer's failure to certify a test refusal to the Department of Revenue within 5 days as required by K.S.A. 8-1002(e) does not deprive the department of jurisdiction to conduct the suspension hearing. Furthermore, failure to timely certify the refusal is not one of the limited issues the department can review under K.S.A. 8-1002(h)(1).
Driving While Suspended
State v. Thomas, ___ Kan. App. 2d ___, 20 P.3d 82 (2001). Steering an inoperable vehicle coasting down the road constitutes "operating a motor vehicle" within the meaning of the habitual violator statute. Convictions of driving while habitual, no proof of liability insurance and failure to display an assigned tag are affirmed.
DUI
State v. Gray, ___ Kan. ___, ___ P.3d ___ (No. 83,430, filed 3/9/2001). Trial court should not have dismissed DUI charge for the officer's refusal to allow a breath test. Here, the defendant initially declined to take the test, haggled with the officer for about 35 minutes, then said he would take the test. The officer did not allow him to do so. Pursuant to Standish, 235 Kan. 900, an initial refusal can be changed or rescinded if a short time passes between the initial refusal and a test would still be accurate. Where improper denial of an opportunity to take a test occurs, remedy is to suppress reference to testing procedures, not dismissal of the DUI charge, if there is other evidence alleged to be sufficient to sustain the DUI charge.
State v. Murry, ___ Kan. ___, ___ P.3d ___ (No. 85,011, filed 4/20/2001). There is no requirement that a defendant be in custody at the time of an involuntary blood draw pursuant to K.S.A. 8-1001. State v. Gordon, 219 Kan. 643, 549 P.2d 886 (1976), has been legislatively overruled. As a Fourth Amendment issue, Schmerber v. California, 384 U.S. 757, 767, 16 L. Ed. 2d 908, 86 S. Ct. 1826 (1966), controls.
State v. Chacon-Bringuez, 28 Kan.App.2d 625, 631, 18 P.3d 970, rev. denied 271 Kan. 1038 (2001). K.S.A. 8-1012, which allows officers to arrest for DUI solely on the results of a PBT is not unconstitutional as a violation of separation of powers.
State v. Peterson, ___ Kan. App. 2d ___, ___ P.3d ___ (No. 86,017, filed 9/14/ 2001). The unambiguous language of K.S.A. 2000 Supp. 8-1567(e) and the ordinary definition of a "day," means the legislature did not intend 4 days, 3 hours, and 12 minutes to be the equivalent of 5 consecutive days' imprisonment. Defendant gets no credit for preconviction time served if that time does not exceed the mandatory sentence for the crime.
Petty v. City of El Dorado, Kansas, ___ Kan. ___, 19 P.3d 167 (2001). Provision in El Dorado's DUI diversion program requiring the defendant to serve 48 or 72 hours in jail depending on their BAC level, as a condition of the diversion, is contrary to the legislative intent expressed in K.S.A. 12-4416(a) that diversion is an alternative to jail punishment. Furthermore, municipal judges do not have the authority to confine a defendant under K.S.A. 2000 Supp. 12-4106 or K.S.A. 2000 Supp. 12-4509 under such conditions.
State v. Cuchy, 270 Kan. 763, 19 P.3d 152 (2001). Sheriff's department policy requiring all DUI arrestees to be detained for 12 hours before being released on bail is unlawful in the absence of an individualized determination by a law enforcement officer that a person is intoxicated and a danger to himself or others. Such a policy violates K.S.A. 2000 Supp. 22-2901(1) which states an arrestee shall be brought before a magistrate "without unnecessary delay." However, dismissal of the charges was an inappropriate remedy. Dismissal "'is an extreme remedy only warranted if the prolonged detention substantially impedes a defendant's ability to prepare a defense.'" Here there was no evidence that it did.
Employment
United States Postal Service v. Gregory, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 00-758, filed 11/13/2001). Merit Systems Protection Board need not await the outcome of pending grievances when ruling on a termination based in part of prior disciplinary offenses. As long as the administrative law judge (ALJ) reviews the prior disciplinary actions pursuant to Bolling v. Department of Air Force, 8 M.S.P.B. 658 (1981), and the ALJ’s decision is not clearly erroneous, the decision will stand. Bolling requires de novo review of prior disciplinary offenses unless (1) the employee was informed of the action in writing; (2) the action is a matter of record; and (3) the employee was given the opportunity to dispute the charges to a higher level than the authority that imposed the discipline. The employee’s disciplinary history is an "important factor" in any disciplinary decision.
Evidence
State v. Freel, 29 Kan. App. 2d 852, 32 P.3d 1219 (2001). The identity of a confidential informant is privileged pursuant to K.S.A. 60-436 unless the identity has already been disclosed or disclosure is essential to assure a fair determination of the issues. If the CI is a mere tipster not involved in the criminal activity, their identity is generally not subject to disclosure.
State v. Plaskett, ___ Kan. ___, 27 P.3d 890 (2001). District court erred in allowing detective to testify to his believe alleged child victim of sexual abuse was telling the truth. Witnesses may not express opinions on the credibility of other witnesses.
City of Liberal, Kansas v. Witherspoon, 28 Kan.App.2d 649, 20 P.3d 727 (2001). Defendant testified in municipal court and was convicted. Defendant appealed to district court and invoked his Fifth Amendment right not to testify. Prosecutor attempted to impeach with prior testimony in district court (through a police officer present at the municipal court trial), but district court suppressed the evidence. Court of Appeals reversed. When a defendant validly waives his Fifth Amendment privilege, he waives it for all subsequent proceedings even in a trial de novo when there is no record below. There is no conceivable reason to allow a police officer to testify about a station house interview while refusing to allow him to testify about statements made by a defendant in open court, under oath.
First Amendment
State v. Phelps, ___ Kan.App.2d ___, ___ P.3d ___ (No, 84,658, filed 3/9/2001). Jonathan screaming "Dyke," then "whore, lesbian, sodomite and dyke" in rapid fire fashion constitutes disorderly conduct.
The Wichita Eagle Beacon Co. v. Owens, ___ Kan. ___, 27 P.3d 881 (2001). News media, as members of the public, can intervene in a criminal case for the limited purpose of challenging a pretrial request or order to seal a record or close a proceeding.
United States v. McKinney, ___ F.3d ___ (10th Cir. No. 00-3228, filed 5/25/2001). Telling a military police officer twice to go "fuck himself" did not constitute disorderly conduct under K.S.A. 21-4101(c). These remarks, presumably made by a civilian to a military police officer who was checking equipment at Fort Riley, were the R-rated equivalent of other commonly used phrases, such as "buzz off," "go away," "leave me alone," and "get lost." Those phrases certainly would not provoke a reasonable person to violence, particularly a police officer. Though her lack of civility may be disheartening, Ms. McKinney has a constitutional right to voice her objections to the officer's inquiries. Here the defendant thought she saw the officer urinating on the equipment and approached him in her vehicle at the high rate of speed. The officer asked defendant whether she worked at the stables, but got no response. The officer repeated his inquiry several times, finally generating the defendant's response.
United States v. Santana-Garcia, 264 F.3d 1188, 1194 (10th Cir. 2001). State and local officers have inherent authority to enforce immigration laws, whether the violations in question are criminal or civil in nature. See also United States v. Salinas Calderon, 728 F.2d 1298 (10th Cir. 1984).
Interrogation
State v. Deal, ___ Kan. ___, ___ P.3d ___ (No. 83276, filed 6/1/2001) Factors evaluated. in determining whether interrogation is custodial or noncustodial include: (1) when and where the interrogation occurred; (2) how long it lasted; (3) how many police officers were present; (4) what the officers and the defendant said and did; (5) the presence of actual physical restraint on the defendant or things equivalent to actual restraint such as drawn weapons or a guard stationed at the door; (6) whether the defendant is being questioned as a suspect or a witness; (7) how the defendant got to the place of questioning, that is, whether he came completely on his own in response to a police request or was escorted by police officers; and (8) what happened after the interrogation _whether the defendant left freely, was detained, or was arrested. The importance of each factor varies from case to case. State v. Fritschen, 247 Kan. 592, 603, 802 P.2d 558 (1990). Here Deal was not in custody where he (1) willingly followed the officers to the Lenexa Police Department; (2) he was free to leave at any time and although the detectives never told him that he was free to leave, he never asked if he was free to leave; (3) he was never handcuffed or placed under arrest; (4) he never asked to make any phone calls or asked for anyone else to be present; and (5) a detective testified that if Deal had asked to leave, he would have allowed him to do so.
Texas v. Cobb, 532 U.S. ___, 121 S.Ct. 1335, 149 L.Ed.2d 321 (2000). Defendant was indicted for burglary of a home. After indictment, he was questioned about the murder of the occupants of the home and confessed. Defendant moved to suppress the confession, claiming interrogating after indictment violated his Sixth Amendment right to counsel. The United States Supreme Court reaffirmed the familiar rule from McNeil v. Wisconsin, 501 U.S. 171, that the Sixth Amendment right to counsel is case specific, and applies only to charged crimes, not factually related uncharged crimes.
State v. Jackson, ___ Kan. ___, 19 P.3d 121 (2001). There was no Miranda violation when suspect asked detective whether he had to be interrogated without an attorney and detective responded with "I'm sorry?" Also, suspect's statement he just wanted to go to his cell and do his time was not an unequivocal request to end the interview.
People v. Paracchi, ___ Cal.App. 3d ___ (No. F031202, filed 01/17/2001). Defendant's response of "At this point, I don’t think so. At this point, I don’t think I can talk" after being read his Miranda rights properly invoked his right to remain silent.
Miscellaneous
JUDGE HALTS USE OF RED LIGHT CAMERAS On September 4th, San Diego Superior Court Judge Ronald Styn threw out 300 tickets for running a red light, saying that the evidence provided by the cameras used was "so untrustworthy and unreliable, it should not be admitted." Approximately 60 cities and counties in the U.S. utilize similar cameras. Styn called the San Diego program flawed because it allows the private company that operates the red light cameras to collect a part of the $271 fine for each ticket issued. The company receives about $70 for each ticket. Because the company decides whether a motorist should be ticketed, the judge found there was a conflict of interest. Specifically, he held that the program violates a state law that does not allow such law enforcement programs to be operated by private companies. He did, however, rule that using a camera to gather evidence is not unconstitutional.
Seck v. City of Overland Park, ___ Kan. ___, 27 P.3d 919 (2001). Seck sought investigatory records on death of a former county commissioner that had been ruled a suicide. Overland Park refused and Seck sued. In response to a motion to dismiss, Seck sought to depose police chief. District court denied request and dismissed action. The district court properly held the records compiled were criminal investigation records as defined by K.S.A. 45-217(b), and defendant can refuse release of them. There was no public interest reason to disclose the records pursuant to K.S.A. 45-221(a)(10), and release could jeopardize the safety of a person named therein. Mere curiosity about the circumstances surrounding an investigation (including an alleged cover-up) is not sufficient to create a public interest in disclosure.
United States v. Oakland Cannibis Buyer's Co-op, ___ U.S. ___, 121 S.Ct. 1711, 149 L.Ed.2d 722 (2000). Federal law does not contain any implied medical necessity exception to its prohibitions on sale and manufacture of marijuana.
Lewis v. Sedgwick County Board of Commissioners, ___ F.Supp.2d ___ (D.Kan. 2001). In an excessive force claim, despite the corrections officer's assertions they used only the minimum force necessary, the court noted that it was up to the jury to assess the credibility of the witnesses and said, "[T]he court notes that more than one of the officers who testified in this case exhibited a quick temper on the stand or an attitude that the jury could reasonably view (and apparently did) as an arrogant dismissal of any questions of the officer's competence or good faith. This demeanor may explain in part the jury's verdict."
State v. Allen, ___ Kan.App.2d ___, 20 P.3d 747 (2000). Uncounseled misdemeanor convictions involving a suspended sentence or probation and which does not result in incarceration can be included in a defendant's criminal history score.
Rogers v. Tennessee, ___ U.S. ___, 121 S.Ct. 1693, 149 L.Ed.2d 697 (2001). Retroactive application of judicial ruling abrogating substantive rule of criminal law known as "year-and-a-day rule" to homicide committed five years prior to change in substantive rule of law does not violate the Fifth and 14th Amendments. Ruling below 992 S.W. 2d 393 (Tenn.).
Simpson v. Bouker, ___ F.3d ___ (10th Cir. No. 00-3101, filed 05/02/2001). Prosecution for failure to pay tax on marijuana under K.S.A. 79-5204 and for criminal possession of marijuana does not violate the Double Jeopardy clause because the tax statute taxes only "dealers", not mere possession of marijuana.
State v. Allen, 28 Kan. App. 2d 784, 20 P.3d 747 (2001). Prior uncounseled municipal misdemeanor convictions resulting in suspended sentences or probation and not incarceration can be included in a defendant's criminal history score and enhance his sentence under the Kansas Sentencing Guidelines Act. Defense counsel has a duty to make some inquiry about the validity of the convictions.
State v. Sophophone, ___ Kan. ___, 19 P.3d 70 (2001)(3 justices dissenting). Strict construction of the felony murder statute does not allow conviction for felony murder when a co-felon engaged in flight from aggravated burglary was legally shot and killed by a police officer defending himself. Defendant was handcuffed and in the back seat of a police car when the officer shot the co-felon.
City of Liberal v. Vargas, ___ Kan. App. 2d ___, ___ P.3d ___ (No. 85583, filed 04/13/2001). Identity theft pursuant to K.S.A. 2000 Supp. 21-4018 requires an intent to defraud someone. Where Juan Vargas purchased identification papers saying he was Guillermo Hernandez in order to get a job at National Beef, and there was no evidence that Guillermo Hernandez was a real person who had his identity stolen, there was no intent to defraud anyone for economic benefit.
Public Nuisance
Keshbro Inc. v. Miami, Fla., ___ So.2d ___ (No. SC94058, filed 7/12/01 2001 WL 776555 (Fla). City may be liable for compensation for a taking when it shuts down property as a public nuisance if the nuisance activity could be alleviated with less infringement on lawful conduct. Here Miami shut down a motel for drug and prostitution activity, and an apartment building for cocain sales. The drugs and prostitution were so inextricably intertwined with the motel operation that no compensation was due. On the other hand, padlocking an apartment building for a year based on two sales of cocaine at the complex was not specifically tailored to abate the drug nuisance, so compensation is due.
Search & Seizure
United States v. Hatcher, ___ F3d ___ (8th Cir. No. 01-2342 12/26/01). A second pat-down search was illegal, and fruits of the search were properly suppressed.
United States v. Talley, ___ F3d ___ (6th Cir. No. 00-5659, 12/28/01). If a defendant is a guest in a house and has no Fourth Amendment expectation of privacy, he cannot challenge the validity of a Miranda-less interrogation and search based upon the officers' reasonable belief that they are in danger.
United States v. Walser, ___ F3d ___ (10th Cir. No 01-8019, filed 12/28/2001). A search of a computer that inadvertently uncovers images of child pornography does not exceed the parameters of a search warrant that specified electronically stored records that facilitate the delivery and distribution of controlled substances.
United States v. Knights, 534 U.S. 112, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001). Mark Knights was on probation on a drug offense. A condition of his probation stated he would "[s]ubmit his … person, property, place of residence, vehicle, personal effects, to search at anytime, with or without a search warrant, warrant of arrest or reasonable cause by any probation officer or law enforcement officer." A police officer suspected Knights of arson of a power company transformer, and gathered enough evidence to establish reasonable suspicion to suspect Knights of the crime. The officer then searched Knight's apartment and found chemicals, ammunition, and books on chemistry and electric circuits. Knights contended the probation order language allowed police to search his home for "probation purposes," in other words, for drugs. The 9th Circuit agreed with Knights, but the United States Supreme Court reversed. The Court held it need not decide whether Knights’s acceptance of the search condition was consent constituting a complete waiver of his Fourth Amendment rights, but held the search of Knights was reasonable under the Fourth Amendment totality of the circumstances approach. Under that approach, the warrantless search was based on reasonable suspicion, which is all the Fourth Amendment requires.
State v. Mudloff, ___ Kan.App.2d ___, ___ P.2d ___ (No. 86847, filed 12/7/2001). While an individual can assert a subjective expectation of privacy in a public bathroom stall, society will not recognize that expectation as reasonable if the stall's occupant is engaged in activity other than the stall's intended use. Here, two ladies were in one stall in a bar snorting cocaine.
Holland v. Harrington, 268 F3d 1179 (10th Cir. 2001). Use of a SWAT team and pointing guns at children during a "dynamic entry" to arrest a suspect on misdemeanor assault & battery charges violated the Fourth Amendment. Right to be free from such an unreasonable search & seizure was clearly established, and where officers encountered no resistance, a reasonable officer should have known they were violating plaintiff's rights. Defendants were denied qualified immunity.
"Of course, in conducting a search or making a seizure, "The risk of harm to both the police and the occupants is minimized if the officers routinely exercise unquestioned command of the situation." Michigan v. Summers, 452 U.S. 692, 702 (1981). Simple instructions spoken in a firm, commanding tone of voice communicate clearly what an officer wants a subject to do, and likely would be most effective, particularly in dealing with bystanders and children.
"In contrast, expletives communicate very little of substance beyond the officer's own personal animosity, hostility or belligerence. Such animus would be entirely misplaced in dealing with bystanders or children, particularly where they have offered no resistance to the officers' initial show of force. "
"One can be firm and direct without being foul and abusive." Being on a SWAT team does not give officers a right to disregard the Fourth Amendment's reasonableness requirement. "At all times, SWAT officers no less than others-- dressed in camouflage or not--must keep it clearly in mind that we are not at war with our own people."
State v. Arculeo, ___ Kan.App.2d ___, ___ P.2d ___ (No. 82636 & 37, filed 11/30/2001). Where information in a search warrant affidavit comes from a defendant's spouse who resides with the defendant in residence to be searched, no further showing of the witness' reliability is required.
United States v. Williams, ___ F3d ___ (10th Cir. No. 00-3365, filed 11/28/2001). Driver's extreme nervousness, possession of a short-range radio and presentation of a car rental agreement not in his own name are sufficient indicia of suspicion to warrant further detention from a routine traffic stop
Kyllo v. United States, 533 U.S. 27, 150 L. Ed. 2d 94, 121 S. Ct. 2038 (2001). Use of a thermal imaging device constitutes a Fourth Amendment search.
United States v. Jourdan, ___ F3d ___ (10th Cir. No. 00-3323, filed 10/1/2001). Court held consent was knowing and voluntary when given during a consensual encounter. First stop on road found driver in violation of hours rule. Trooper told driver to stop and rest. Later, they saw the truck at a truck stop and three men got out. Trooper parked his vehicle about 20 feet away in front of the truck, approached, and received consent to search and found marijuana. There was no show of authority, threatening tone, holding of documents, etc., suggesting anything other than a consensual encounter.
United States v. Basham, ___ F. 3d ___ (10th Cir. No. 01-5016, filed 10/22/01). Where police request a no-knock warrant, the magistrate does not have an independent duty to inquire as to the means by which service is to be executed.
United States v. DeLuca, ___ F.3d ___ (10th Cir. No. 00-1442, filed 0/25/01). To suppress evidence found as a result of an illegal detention that occurred after a valid traffic stop, a defendant must show that the police would not have discovered the evidence but for defendant's unlawful detention and not the detention of the driver.
State v. Partridge, ___ Kan. App. 2d ___, ___ P.3d ___ (No. 86213, filed 10/19/2001). When a citizen-informant calls a dispatcher on her cell phone, identifies herself and reports that she is following a reckless driver, no additional or independent proof of reliability is necessary to support an investigative stop.
Orr v. Ohio, cert. denied, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (2001 No. 01-253). The Issue was whether police roadblocks to check for unlicensed drivers violated the Constitution's guarantee against unreasonable searches or stops. Magus D. Orr and Andre L. Smith were ticketed in June 1998, when police ran several checkpoints throughout the city. The men claim the stops were unconstitutional because police had no particular reason to suspect one motorist over another. The Ohio Supreme Court unanimously upheld the roadblocks in May.
Overton v. Ohio, cert. denied, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (2001 (No. 00-9769)). Police had an arrest warrant for Desarie Overton for harboring drug dealers. The warrant was issued by a Toledo City Court, and signed by a clerk of the court, not a judge. Overton had refused to let officers in her home, so they kicked the door in and found her upstairs, along with some cocaine rocks wrapped in a $20 bill. An appeals court upheld Overton's conviction, refusing to invalidate the warrant. The Ohio Supreme Court refused to take the case. The United States Supreme Court denied certiorari, four justices explaining they denied cert. because the issue had already been decided, saying, ``The warrant is clearly inadequate under well-established Supreme Court case law,'' Justice Stephen Breyer wrote for the group.
State v. Freel, 29 Kan. App. 2d 852, 32 P.3d 1219 (2001). After getting a tip from a CI and stopping a car believed to carry drugs, and a canine sniff of the exterior of the car resulted in no alerts, Deputy Shrock "encouraged" the canine to jump into the interior of the vehicle. The canine's entry into the vehicle violated the defendant's Fourth Amendment rights.
State v. Baughman, 29 Kan.App.2d 812, 32 P.3d 199 (2001). Warrantless nighttime entry into a commercial building with a unsecured door and a light left on inside was not unreasonable. Although court refuses to recognize a nighttime security check exception to the warrant requirement, entry was reasonable under the emergency doctrine.
State v. Bank of America, ___ Kan. ___, ___ P.3d ___ (No. 86280, filed 9/28/2001). Kansas bank account holders have no constitutional expectation of privacy in their bank records. See also United States v. Miller, 425 U.S. 425, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976); State v. Shultz, 252 Kan. 819, 828, 850 P.2d 818 (1993).
United States v. Holt, 229 F.3d 931 (10th Cir. 2000), vacated on rehearing en banc 264 F.3d 1215 (10th Cir. 2001). Officers established a targeted checkpoint because they believed defendant was transporting illegal drugs. Defendant approached the checkpoint and was not wearing his seat belt. He was pulled over and requested to join a trooper in his patrol car. While the trooper was holding Holt’s driver’s license and writing a warning, he asked Holt if "there was anything in [Holt’s] vehicle [the trooper] should know about such as loaded weapons." Holt said there was loaded pistol behind the passenger seat. When the trooper asked about anything else, Holt said "I know what you are referring to, but I don’t use them anymore." Trooper then asked to search the vehicle, and Holt agreed, yielding a loaded gun, methamphetamine and paraphernalia. A panel of the 10th Circuit initially held that questions unrelated to the purpose of the stop amounted to an illegal detention which was not supported by reasonable suspicion and remanded for hearing on whether consent to search was nevertheless voluntary. Sitting en banc, a 5-4 majority of the full court vacated the panel's opinion and reversed the suppression, remanding for further proceedings. The court reasoned that questions about loaded weapons are justified in the interests of officer safety and, when weighed against Holt's even lower expectation of privacy (Oklahoma law requires permitted weapons carriers to disclose the existence of the weapon upon initial contact with any law enforcement officer), there is minimal intrusion on his Fourth Amendment rights. It would make little sense for Oklahoma society to recognize as reasonable the privacy expectations of those who illegally possess concealed weapons when law-abiding weapons carriers have to disclose the existence of their weapons to law enforcement officers. The case was remanded to answer questions about whether the officers questions unnecessarily lengthened the scope and duration of the stop.
United States v. Caro, 248 F.3d 1240, 1243 (10th Cir. 2001). A police officer may not examine a car's doorjamb VIN number without probable cause to conduct a search, or without consent of the driver.
United States v. Miles, ___ F.3d ___ (10th Cir. No. 00-3230, filed 7/19/01). Officers Mechler, Cochran and one unnamed Topeka Police Officer (probably Obregon) did not violate the Fourth Amendment in gaining consent to enter an apartment to look for a fugitive. Resident voluntarily consented to the officers' entry during a two-to-ten minute encounter in which she came to the door wrapped in a blanket, even though officers (truthfully) told her she could be arrested for harboring a fugitive. Officers merely stated a fact; they did not threaten to punish the resident if she refused consent. These alleged "threats" do not rise to the level of coercion or duress necessary to negate consent.
State v. Cooper, ___ Kan. App. 2d ___, 23 P.3d 163 (2001). Defendant had no reasonable expectation of privacy society would protect as reasonable in an adult store video booth. Ordinance prohibited booth doors or curtains from being locked and bottom of door or curtain to be at least 15 inches from the floor. Ordinance also required admission of law enforcement officers, and the business was frequently inspected. Officer walked into the booth and saw drugs and paraphernalia in plain view.
United States v. Burnbridge, ___ F.3d ___ (5th Cir. No. 00-50006, 2001). Ordinary citizens who report a crime and remain available in person throughout the encounter ensure the credibility of the information they provide and thus provide probable cause for police search.
State v. Fortune, ___ Kan. App. 2d ___, 20 P.3d 74 (2001). Warrantless search and seizure of trash in a trash bin adjacent to defendant's trailer and about 8 feet from the street where it was normally placed for collection did not violate the defendant's Fourth Amendment rights. There was no reasonable expectation of privacy even if the trash was within the curtilage of his home. There was no fence, and the trash was easily accessible to the public and clearly visible from a public thoroughfare.
Ferguson v. City of Charleston, 523 U.S. ___, 121 S.Ct. 1281, 149 L.Ed.2d 205 (2000). Nonconsensual urine testing by state hospital personnel to determine, for law enforcement, whether expectant mothers were using cocaine violated mother's rights under the Fourth Amendment. The asserted "special need" - to protect the health of the mother and unborn fetus - does not justify warrantless, nonconsensual searches because the obvious purpose of the drug testing policy is a general interest in crime control.
United States v. Colon, ___ F.3d ___ (2d Cir. No. 00-1628, filed 05/14/2001). Caller information given to a civilian 911 operator working for the New York Police Department but not conveyed to the dispatching or arresting officer cannot be imputed to the arresting officer under the collective knowledge doctrine as a basis for reasonable suspicion to justify a search of defendant.
Atwater v. City of Lago Vista, 532 U.S. 318, 121 S.Ct. 1536, 149 L.Ed.2d 549 (2001). Motorists 4th Amendment right to be free from unreasonable search & seizure was not violated after she was arrested, handcuffed and taken to jail for failing to wear her seatbelt, failing to put her kids in seatbelts, driving without a license and failing to provide proof of insurance. The Fourth Amendment does not limit use of custodial arrests for a fine-only offenses committed in an officer's presence. Common law did not clearly prohibit an arrest in such a situation, nor did it limit arrests to only misdemeanors involving a breach of the peace. Affirms Fifth Circuit opinion 195 F.3d 242 (1999 CA-5 Tex.)(en banc)(three judges dissenting).
State v. Calhoun, ___ Kan. App. 2d ___, 19 P.3d 179 (2001). Motion to suppress cocaine was properly denied where the defendant was stopped for speeding, gave officer several false names (to avoid arrest on a warrant), and kept reaching towards the center of the vehicle. Officer was reasonably concerned for his safety, and suspect would have been arrested on warrant if he hadn't lied about his identity, so evidence would have been inevitably discovered.
Illinois v. McArthur, 531 U.S. 326, 121 S.Ct. 946, 148 L.Ed2d 838 (2001). Police officers went on a domestic standby while wife removed items from her husband’s trailer. After she finished, she told officers he had "dope in there," and told officers it was under the couch. Officers asked for, but did not receive consent to search. They refused to let husband reenter unescorted for about two hours while they sought warrant. Officer briefly stood in doorway when husband reentered to obtain cigarettes & make phone calls. Illinois appellate courts held this was illegal detention. Supreme Court reversed, finding probable cause to believe that defendant had hidden marijuana in his home, exigent circumstances (possible destruction of evidence) warranted brief & limited entries, and officers sought a warrant with reasonable diligence. Distinguished Welsh v. Wisconsin on basis of "jailable" v. "nonjailable" crimes as opposed to misdemeanor v. felony crimes.
State v. Jones, 27 Kan. App. 2d 476, 5 P.3d 1012 (2000), affirmed ___ Kan. ___, 17 P.3d 359 (2001). Officer did not violate passenger's constitutional rights by asking for ID and running passenger for warrants during a stop for speeding. Records check was conducted during normal scope and duration of traffic stop. Distinguishes State v. Damm, 246 Kan. 220, 787 P.2d 1185 (1990), and relies upon Maryland v. Wilson, 519 U.S. 408, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997). Supreme court held that once officers acting in good faith discovered a warrant, they had a right to take him into custody even though he may have been unlawfully detained.
United States v. Gay, ___ F.3d ___ (10th Cir. No. 00-6099 filed 2/12/2001). Officers' reasonable reliance on confidential informant and reasonable belief that defendant-arrestee (1) lived in residence at time of entry to search it is sufficient to justify entry, so long as defendant had common authority over, or other significant relationship to premises, and (2) defendant was in residence at the time of entry.
Trigalet v. City of Tulsa, ___ F.3d ___ (10th Cir. No. 98-5261, filed 2/7/2001). A municipality cannot be held liable for an injury caused by its police officer, even if the City's actions can be characterized as arbitrary, or conscience-shocking, if there are no unconstitutional acts by an individual officer. Fleeing suspect in a stolen van ran a red light and killed three people. Applying County of Sacramento v. Lewis, 523 U.S. 833 (1998), court found no reckless disregard by the officer, or intent to cause the decedents harm, when continuing the pursuit. Even if policies, training and supervision were unconstitutional, no liability attaches to the city if the officer did not commit a constitutional violation.
United States v. Walker, ___ F.3d ___ (7th Cir. No. 99-4022, filed 1/17/2001). A person listed on a car rental agreement as an authorized driver has a protected Fourth Amendment interest in the vehicle and may challenge a search of the rental vehicle.
United States v. McFadden, ___ F.3d ___ (2nd Cir. No. 00-1254, filed 1/18/ 2001). Police stop of suspect for violation of section New York City Admin. Code Section 19-176(b), prohibiting riding a bicycle on the sidewalk, is sufficient to support probable cause for suspect's arrest and subsequent discovery of gun in his possession.
State v. Bowles, ___ Kan. App. 2d ___, 18 P.3d 250 (2001). Following factors were sufficient for issuance of a search warrant: (1) Experienced law enforcement officer familiar with drug dealers and drug trafficking; (2) belief that target and his brother lived at certain address; (3) store owner contacted officer and advised those persons bought solar tea jars and asked for metal lids, and also asked for sulfuric acid & plastic tubing; (3) persons actually bought sulfuric acid & plastic tubing at another store; (4) officer's knowledge of defendant's past drug activity; (5) target bought John Deere starting fluid; (6) odor of ether and sight of a gas generator in adjoining residence which led to a knock and talk and unsatisfactory explanation about source of odor; and (7) confidential informant information indicating the target manufactured methamphetamine at his residence.
State v. Grace, ___ Kan. App. 2d ___, 17 P.3d 951 (2001). Where Wichita officers approached a parked car at a bar without having reasonable suspicion, eventually detained the occupants to run warrant checks, and patted down a passenger twice, eventually finding drugs, court must perform this analysis: (a) Did the interaction between the officers and the car's occupants result from a voluntary encounter rather than a stop or seizure subject to Fourth Amendment evaluation? (b) If the initial contact did not qualify as a stop, did the continued contact convert an otherwise voluntary encounter into an investigatory detention? (c) If the initial contact qualified as a stop or the continued contact converted a voluntary encounter into an investigatory detention, was it based on a reasonable and articulable suspicion that the occupants of the car had committed, were committing, or were about to commit a crime? (d) If the stop or detention was unlawful, is the appellate record sufficient to enable us to analyze whether the consent purged whatever taint arose? and/or (e) If the appellate record is sufficient for us to make a determination, did the consent purge the taint here? In this case, (a & b) encounter ceased being consensual when officers took ID to perform warrant checks; (c) officers could not have reasonably suspected loitering when they only observed the car for 5 seconds before approaching; (d & e) record is sufficient and consent did not purge the taint. Consent closely followed Fourth Amendment violation, there were no intervening circumstances but waiting for dispatch, and although officer's conduct was not flagrant, their telling different stories about reason for the initial approach (knew occupants v. loitering) leads to conclusion that consent did not purge taint.
Traffic Stops
Thomas v. State, 761 So. 2d 1010 (Fla. 1999), cert granted, Florida v. Thomas, ___ U.S. ___, cert. dismissed for want of jurisdiction, 532 U.S. 774 (2001). Can a police officer conduct a warrantless search of a vehicle incident to the driver's arrest (on a warrant) after the driver voluntarily left the vehicle? Defendant drove up to house where officers were conducting a raid. Detective approached him while at the back of his car, asked for ID and arrested him on warrants. Florida held Belton did not allow such a search absent a threat to officer safety or necessity to preserve evidence.
United States v. Callerman, ___ F3d ___ (10th Cir. No. 01-3039, filed 12/7/2001). Topeka Police Officer Bruce Voigt saw defendant leaving "Wild Thangs II." a head shop, and stopped the vehicle for failing to signal a turn and a cracked windshield. Voigt saw the passenger reaching down to the floor of the car and became concerned for his safety. Voigt ordered defendant out of the car, saw a knotted plastic bag on the floor of the car, and found cocaine. Defendant moved to suppress the cocaine, arguing that the initial stop was illegal. He argued that a traffic stop must be supported by probable cause rather than reasonable suspicion, and that neither the crack in the car's windshield nor the driver's failure to signal when turning from a private lot onto a public highway provided probable cause. The Tenth Circuit applied long-standing, well settled rules that a traffic stop need be supported only by reasonable suspicion, and held a crack in the car's windshield and the driver's failure to signal when turning from a private lot onto a public highway provided sufficient reasonable suspicion for a traffic stop. The court found it was irrelevant whether the observed crack was, in fact, large enough to constitute a violation of the law.
United States v. Williams, ___ F3d ___ (10th Cir. No. 00-3365, filed 11/28/2001). Driver's extreme nervousness, possession of a short-range radio and presentation of a car rental agreement not in his own name are sufficient indicia of suspicion to warrant further detention from a routine traffic stop
United States v. Jourdan, ___ F3d ___ (10th Cir. No. 00-3323, filed 10/1/2001). Court held consent was knowing and voluntary when given during a consensual encounter. First stop on road found driver in violation of hours rule. Trooper told driver to stop and rest. Later, they saw the truck at a truck stop and three men got out. Trooper parked his vehicle about 20 feet away in front of the truck, approached, and received consent to search and found marijuana. There was no show of authority, threatening tone, holding of documents, etc., suggesting anything other than a consensual encounter.
United States v. DeLuca, ___ F.3d ___ (10th Cir. No. 00-1442, filed 0/25/01). To suppress evidence found as a result of an illegal detention that occurred after a valid traffic stop, a defendant must show that the police would not have discovered the evidence but for defendant's unlawful detention and not the detention of the driver.
State v. Partridge, ___ Kan. App. 2d ___, ___ P.3d ___ (No. 86213, filed 10/19/2001). When a citizen-informant calls a dispatcher on her cell phone, identifies herself and reports that she is following a reckless driver, no additional or independent proof of reliability is necessary to support an investigative stop.
Orr v. Ohio, cert. denied, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (2001 No. 01-253). The Issue was whether police roadblocks to check for unlicensed drivers violated the Constitution's guarantee against unreasonable searches or stops. Magus D. Orr and Andre L. Smith were ticketed in June 1998, when police ran several checkpoints throughout the city. The men claim the stops were unconstitutional because police had no particular reason to suspect one motorist over another. The Ohio Supreme Court unanimously upheld the roadblocks in May.
United States v. Holt, 229 F.3d 931 (10th Cir. 2000), vacated on rehearing en banc 264 F.3d 1215 (10th Cir. 2001). . Officers established a targeted checkpoint because they believed defendant was transporting illegal drugs. Defendant approached the checkpoint and was not wearing his seat belt. He was pulled over and requested to join a trooper in his patrol car. While the trooper was holding Holt’s driver’s license and writing a warning, he asked Holt if "there was anything in [Holt’s] vehicle [the trooper] should know about such as loaded weapons." Holt said there was loaded pistol behind the passenger seat. When the trooper asked about anything else, Holt said "I know what you are referring to, but I don’t use them anymore." Trooper then asked to search the vehicle, and Holt agreed, yielding a loaded gun, methamphetamine and paraphernalia. A panel of the 10th Circuit initially held that questions unrelated to the purpose of the stop amounted to an illegal detention which was not supported by reasonable suspicion and remanded for hearing on whether consent to search was nevertheless voluntary. Sitting en banc, a 5-4 majority of the full court vacated the panel's opinion and reversed the suppression, remanding for further proceedings. The court reasoned that questions about loaded weapons are justified in the interests of officer safety and, when weighed against Holt's even lower expectation of privacy (Oklahoma law requires permitted weapons carriers to disclose the existence of the weapon upon initial contact with any law enforcement officer), there is minimal intrusion on his Fourth Amendment rights. It would make little sense for Oklahoma society to recognize as reasonable the privacy expectations of those who illegally possess concealed weapons when law-abiding weapons carriers have to disclose the existence of their weapons to law enforcement officers. The case was remanded to answer questions about whether the officers questions unnecessarily lengthened the scope and duration of the stop.
United States v. Zubi-Melendez, ___ F.3d ___ (10th Cir. No. 00-3138 filed 8/24/2001). An officer's testimony that defendant's car wandered over lane line without signalling is sufficient to support a traffic stop despite inconclusive videotape evidence where the driver did not explicitly deny crossing lane line.
United States v Purcell, No 99-11537 (11th Cir. January 04, 2001) A fourteen minute prolonged detention during traffic stop by law enforcement to wait for information about the criminal histories of the car's occupants is reasonable, and scope of the stop was not impermissibly enlarged when officer asked defendant whether he had any "firearms, guns, or narcotics" in the car.
Use of Force
Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). Excessive force analysis is distinct from qualified immunity analysis. A finding of unreasonable force does not necessarily preclude an officer from being entitled to qualified immunity.
Cruz v. City of Laramie, Wyoming, 239 F.3d 1183 (10th Cir. 2001). Hog-tying a person of diminished capacity is excessive force, although the officers in this case were entitled to qualified immunity.
ADA
Krocka v. City of Chicago, 203 F.3d 507 (7th Cir. 2000). Police department did not violate ADA by ordering a fitness for duty evaluation and monitoring program after he began taking Prozac. Department did not "regard him" as disabled.
Calloway v. Glassboro, N.J. Police Department, ___ F.3d ___ (No. 98-3139, 2/8/00). In custody questioning at police station is an "activity" covered by Title II of the ADA and § 504 of the Rehabilitation Act. Questioning deaf and illiterate person without the benefit of a certified American Sign Language Interpreter (agency provided an uncertified one) violates the act. See 28 C.F.R. § 35.160. Opinion does not require street officers making an arrest to provide a qualified interpreter.
Arrest
State v. Rosas, ___ Kan. App. 2d ___, 17 P.3d 379 (2000). Failure to notify a foreign national of their right to contact their consul pursuant to 36(1)(b) of the Vienna Convention does not require suppression of evidence. Also in-custody statements were freely, voluntarily and knowing given, and consent to search is voluntary despite the per se violation of K.S.A. 75-4351(e) which requires appointment of an interpreter. See also United States v. Minjares-Alvarez, ___ F.3d ___ (10th Cir. No. 00-2004, filed 7/27/2001).
State v. Pritchett, 270 Kan. 125, 130-31, 11 P.3d 1125 (2000). Revenue agent who approached defendant because of his "youthful appearance" and cup of amber liquid in his hand had reasonable suspicion to believe defendant was committing the crime of minor in possession of alcohol. Thus, officer could detain defendant while he verified his age.
Oliver v. Woods, et al., 209 F3d. 1179 (10th Cir. 2000). Officers were entitled to qualified immunity where they detained, then arrested plaintiff on somewhat shaky reasonable suspicion to believe he was involved in illegal oil dumping or trespass. Suspect refused to identify himself or present a driver's license as required by a statute similar to K.S.A. 22-2402(1). Concluding there was reasonable suspicion for an investigatory detention, the court held officers could have believed there was probable cause to believe plaintiff committed interference with an arrest or detention and/or disobeying a lawful order, therefore arrest was lawful.
Illinois v. Wardlow, 528 U.S. 119, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000). Flight from a clearly identified police officer in an area known for narcotics trafficking establishes reasonable suspicion to support a Terry stop. After stopping Wardlow, officers conducted a Terry pat down of an opaque bag he was carrying and discovered a .38 revolve and five live rounds. Wardlow, a convicted felon, was properly convicted of unlawful use of a weapon by a felon.
State v. Beal, 26 Kan. App.2d 837, 994 P.2d 669 (2000). An arrest warrant not only allows officers to search the house of the person named in the warrant, but also a detached garage if officers have a reasonable basis for believing the person named in the warrant will be found therein.
Civil & Criminal Liability
Sterling v. Borough of Minersville, Pa., 232 F.3d 190 (3rd Cir. 2000). Officer's threat to disclose arrestee's suspected homosexual orientation to his grandfather, which threat resulted in the arrestee's suicide, is actionable as a privacy violation and officer is not entitled to qualified immunity. Officer should have known that sexual orientation is an intrinsically private matter.
State v. Anderson, 270 Kan. 68, 12 P.3d 883 (2000). District court erred in dismissing involuntary manslaughter charges against person who was fleeing from police on a motorcycle. Although trooper failed to exercise due care for the safety of others and was guilty of vehicular homicide, his negligence or criminal responsibility is not a defense to charges against the defendant. Officers have a duty to apprehend and arrest law violators.
State v. Legg, ___ Kan. App. 2d ___, 13 P.3d 355 (2000). Overland Park Police Officer who searched 16 and 17 year old girls, then released them, was convicted of four counts of misdemeanor sexual battery after grabbing their buttocks, groping them and cupping their breasts. Officer initially denied having contact with the girls, but later admitted to searching them, albeit non-sexually.
Brown v. Gray, 227 F.3d 1278, 1286 (10th Cir. 2000). Off-duty Denver officer in street clothes in his own private vehicle had a traffic dispute with another motorist. Officer approached other vehicle, identified himself as an officer (although he did not show badge or ID), and pointed his gun at the motorist. Motorist drove off and officer pursued him. After another stop and verbal exchange, motorist drove off again. Officer fired several shots into the car and hit the motorist about 3 times, badly injuring him. Officer claimed motorist brandished a weapon at him, thus he attempted arrest. He claimed motorist appeared to be reaching for a weapon and attempting to flee. Denver has an "always armed/always on duty" policy. Motorist sued officer & Denver alleging various state and federal claims, including a civil rights claim against Denver for failure to train. Motorist alleged training program made no distinction between off-duty and on-duty scenarios, despite the disadvantages an officer has while off-duty (no patrol car, uniform, radios, handcuffs, etc). Officer cross-claimed against Denver for indemnification and defense costs. Motorist and officer settled prior to trial for $150,000. Officer assigned motorist cross-claim for defense costs against Denver. Jury found motorist proved failure to train claim, but found officer was not acting within the scope of his employment. Judgement for motorist for $400,000. On appeal, 10th Circuit held there was more than sufficient evidence for jury to determine training program was inadequate, this was a usual and recurring situation, the failure to train constituted deliberate indifference, and that the failure to train was the cause of the motorists injuries. Also, the district court erred in denying the motorist judgment for approximately $123,300 in defense costs the officer assigned to him. Case was remanded for further consideration and attorney fees.
Crownover v. City of Lindsay, Oklahoma, 229 F.3d 1162, 2000 WL 1234852 (10th Cir. unpublished Sept. 1, 2000). City is not liable for civil rights violation arising from a sexual assault committed by a police lieutenant who went to the woman's home a few hours after arresting her husband on drug charges. Plaintiffs must show the officer was acting pursuant to a city policy or custom, and here there was no such evidence. Summary judgment for defendant affirmed.
Kirk v. City of Shawnee, Kansas, ___ Kan. App. 2d ___, 10 P.3d 27 (2000). Public duty doctrine protects City of Shawnee from plaintiff's claims that police failed to protect her from her estranged husband.
Childress v. Oklahoma, ___ F.3d ___ (10th Cir. No. ______) profiled in 10 K.L. 209, p. 21, week of April 30-May 6, 2000). Absent evidence that law enforcement officers intended to harm innocent hostages when trying to recapture escaped convicts, officers did not violate hostages Fourth Amendment rights.
Oliver v. Woods, et al., 209 F3d. 1179 (10th Cir. 2000). Officers were entitled to qualified immunity where they detained, then arrested plaintiff on somewhat shaky reasonable suspicion to believe he was involved in illegal oil dumping or trespass. Suspect refused to identify himself or present a driver's license as required by a statute similar to K.S.A. 22-2402(1). Concluding there was reasonable suspicion for an investigatory detention, the court held officers could have believed there was probable cause to believe plaintiff committed interference with an arrest or detention and/or disobeying a lawful order, therefore arrest was lawful.
Livoti v. United States, 196 F.3d 322 (2d Cir.), cert. denied (No. 99-1344, 5/15/00). No error in applying an upward sentencing departure where a police officer killed a person by applying a choke hold during an unjustified arrest for playing football in the street.
Driver's License Suspensions
Hemphill v. Kansas Dept. of Revenue, 270 Kan. 83, 11 P.3d 1165 (2000). Manufacturer’s operation manual for the Intoxilyzer 5000 is not required to be filed by the Dept. of Revenue as a rule or regulation pursuant to K.S.A. 77-416(a), and availability of officer’s training manual for purchase from KDHE complies with due process.
State v. Hershberger, ___ Kan. App.2d ___, 5 P.3d 1004 (2000). On an arrest for driving while suspended, failure to conduct a probable cause hearing within 48 hours should not result in dismissal unless the defendant shows prejudice to his ability to prepare his defense. The state's requirement that a person have a valid drivers' license does not violate the Constitutional right to travel. "An officer's attempt to elicit the name and address of a person legitimately detained does not seek evidence of a testimonial nature bearing on the commission of a crime and, therefore, does not implicate the privilege against self-incrimination." Booking information (fingerprints and photographs) are not testimonial in nature.
Badgley v. Kansas Dept. of Revenue, ___ Kan. App. 2d ___, 7 P.3d 326, (2000). Under K.S.A. 1999 Supp. 8-1015, only the Kansas Department of Revenue is authorized to place restrictions on a person's driving privileges. The district court does not have jurisdiction to modify the restrictions imposed on a person's driving privileges by the Kansas Department of Revenue under K.S.A. 1999 Supp. 8-1015. Badgley's request to be allowed to drive to his former wife's residence for visitation cannot be granted.
Driving While Suspended
State v. Edwards, ___ Kan. App. 2d ___, 15 P.3d 855 (2000). Amendment to K.S.A. 8-262(a) decreasing penalty from a felony to a misdemeanor does not apply retroactively to defendant's May 5, 1999, offense. Offense is a misdemeanor only on and after July 1, 1999. Law in effect at the time the crime was committed controls, not that in effect on the conviction date.
State v. Gee, ___ Kan. App. 2d ___, ___ P.2d ___ (No. 83675, filed 7/14/2000). In order for the "hard 90" sentence in K.S.A. 8-262(a)(4) [or STO 194(a)(4)] to apply, the person must be suspended for a conviction of K.S.A. 8-1567, not just a violation of the statute. Here, defendant failed (refused?) a test on 6/18/98 and during the one year administrative suspension failed another test on 1/21/99 and was charged with DUI & DWS. The DWS sentence on the 1/21/99 crime was not required to be a mandatory 90 days. The legislature can enact an increased penalty for driving after being suspended at an administrative hearing, but it has not chosen to do so.
State v. Hershberger, ___ Kan. App.2d ___, 5 P.3d 1004 (No. 82,400 filed 5/5/2000). Statute requiring driver's licenses and vehicle registrations doe not impermissibly impair a person's constitutional right to travel in violation of the Fourteenth Amendment. Also, if a person had actual notice their license was suspended, it does not matter where the Department of Revenue sent the notice of suspension nor whether the defendant received it.
State v. Bowie, 268 Kan. 794, 999 P.2d 947 (2000). Persons cannot be charged with and convicted of driving while suspended pursuant to K.S.A. 1999 Supp. 8-262(c) (or STO 194) if they have never applied for a driver's license. The appropriate charge is driving without a valid driver's license pursuant to K.S.A. 8-235 (or STO 192).
Due Process
Apprendi v. New Jersey, 500 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). A New Jersey hate crime law provides for an "extended term" of imprisonment if the trial judge finds, by a preponderance of the evidence, that "[t]he defendant in committing the crime acted with a purpose to intimidate an individual or group of individuals because of race, color, gender, handicap, religion, sexual orientation or ethnicity." N. J. Stat. Ann. §2C:44-3(e). The Court struck down the law on the ground that the Due Process Clause of the Fourteenth Amendment requires that a factual determination resulting in an increased prison sentence be made by a jury on the basis of proof beyond a reasonable doubt. See also Blakely v. Washington, 124 S.Ct. 2351 (2004)(same).
DUI
State v. Ludes, ___ Kan. App. 2d ___, 11 P.3d 72 (2000). Anonymous tip that someone on a motorcycle appeared to be injecting something into their arm with a needle did not constitute reasonable suspicion to stop the defendant. There was insufficient corroboration because all the officer saw was a guy on a motorcycle in the general area. Although safety reasons can justify a stop, driver appeared to be in complete control of the motorcycle and had no problem operating it.
State v. Gerschoffer, ___ Ind.App. ___ (No. 71A05-0003-CR-116, filed 11/28/00). Although Michigan Dep't. of State Police v. Sitz, 496 U.S. 444 (1990) allows suspicionless sobriety checkpoints under the federal constitution, the Indiana constitution grants greater rights and such checkpoints are unconstitutional under the state constitution.
State v. Baker, ___ Kan. ___, 2 P.3d 786 (No. 83,019 filed 6/2/2000). In a criminal DUI case, officer's failure to check the box on the DC-27 form stating the officer had probable cause to believe the defendant was driving a vehicle while under the influence of alcohol does not require suppression of the blood test of 0.199. While failure to check a box will result in form itself not being admissible to prove statements that were not checked, the state can satisfy its burden of proof through competent testimony.
City of Colby v. Cranston, ___ Kan. App.2d ___, 7 P.3d 300 (2000). When a defendant requests a no-adverse inference instruction on his refusal to testify, PIK Crim. 3d 52.13 is inadequate because it does not contain a compulsion component. Evidence of a breath test of 0.129 taken without 2 hours of operating a vehicle is sufficient to convict under subsection 30(a)(2). City does not have to prove alcohol concentration at the actual time of driving. Finally, wife's statement to officer that she could not move the car because she had been drinking too was properly admitted as a present sense impression under K.S.A. 60-460(d)(1).
State v. Hartman, 26 Kan.App.2d 928, 991 P.2d 911 (2000). Officer's assurance that hospital would draw blood was mistaken but not unreasonable under circumstances. Consent to breath test was not coerced and officer engaged in no misconduct, so exclusionary rule does not prohibit introduction of test results.
State v. Creamer, 26 Kan. App.2d 914, 996 P.2d 339 (2000). DUI, involuntary manslaughter and injury to a pregnant woman are all strict liability offenses and do not require evidence of intent.
Enslow v. Kansas Dept. of Revenue, 26 Kan. App.2d 953, 996 P.2d 361 (2000). DC-27 does not have to be served while suspect is still in custody. Here, the defendant failed a breath test. The officer incorrectly filled out the DC-27 and served it on defendant. The officer later filled out a new DC-27 and served it on defendant after his release from jail, destroying the original. District court reversed suspension stating notice problem created fatal errors. Court of appeals reversed, holding amended DC-27 was appropriate and was personally served, which is all the statute requires.
Gross v. Kansas Dept. of Revenue, 26 Kan. App.2d 847, 994 P.2d 666 (2000). An officer does not need probable cause to believe a person is driving under the influence to request a preliminary breath test (PBT). Pursuant to K.S.A. 8-1012(a), the officer only needs reasonable grounds to believe the person has alcohol in their body. Here, driver was stopped at a checklane. The officer detected the odor of an alcoholic beverage and defendant's glazed eyes. Plus, she admitted having a few beers. These were reasonable grounds to request a PBT.
City of Manhattan v. Larson, 26 Kan. App.2d 851, 994 P.2d 1087 (2000). Officer's mistaken belief that truck tag had expired on December 31 (grace period under K.S.A. 8-134 allows until February 15 to renew) is reasonable suspicion for a traffic stop resulting in a DUI arrest, even though officer was unaware of grace period.
Employment & Discipline
Lanning v. SEPTA, 2000 U.S. Dist. LEXIS 17612 (E.D. Pa., Dec. 7, 2000). A transit authority's police force did not discriminate against women by adopting a physical fitness test that requires all applicants to run 1.5 miles in 12 minutes or less, even though it has a disparate impact and excludes about 93% of women applicants. Requirement is a bona-fide occupational qualification for this unique, foot-based patrol. Case history: Originally decided at: 1998 U.S. Dist. Lexis 9388, 1998 WL 341605 (E.D. Pa. 1998); Reversed at: 181 F.3d 478 (3rd Cir. 1999); Certiorari denied at: 145 L.Ed. 2d 840, 120 S.Ct.970 (2000).
City of Virginia Beach v. Harris, 259 Va. 220, 523 S.E. 2d 239 (2000). City did not violate Officer's rights by terminating his employment after he had his Lt. arrested for obstruction. Case does not fit within the public policy exception to the employment at will doctrine, which applies when there is an explicit statement of public policy or a law that involves property rights, personal freedoms, health safety or welfare, and the employee must be a member of the class to be protected by the statute. Obstruction is not such a statute.
Collazo v. City of New York, (No. 99-7967 2d Cir.) 2000 U.S. App. Lexis 6120. Termination upheld for two NYPD officers who secretly had precinct mascot Fred the beagle euthanized by taking him to the ASCPA and reporting him as a stray. One officer gave a false name, phone number and badge number. Ex officers sued for race and national origin discrimination. Court found there was no evidence that terminations were based on race or national origin reasons.
Evidence
State v. Lamae, 268 Kan. 544, 998 P.2d 106 (2000). Opinion gives step-by-step instructions for the heat reduction method of methamphetamine production. It also states "[t]he process is very dangerous. Not only are the chemicals used at each stage very flammable in and of themselves, but their fumes can also be flammable." The Kansas Supreme Court held that failure to preserve the hazardous waste evidence (meth lab components) did not require suppression of the evidence because there was no evidence of bad faith on the part of the state. Where the state fails to preserve evidentiary material "of which no more can be said than it could have been subjected to tests, the results of which might have exonerated the defendant," requiring a defendant to show bad faith "limits the extent of the police's obligation to preserve evidence to reasonable bounds and confines it to that class of cases where they interests of justice most clearly require it, i.e., those cases in which the police themselves by their conduct indicate that the evidence could form a basis for exonerating the defendant." Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988). See also State v. Finley, ___ Kan. ___, ___ P.3d ___ (No. 85709, filed 3/15/2002).
Firearms
United States v. Reddick, ___ F.3d ___ (10th Cir. No. ___, week of 2/20 - 2/26 2000). Due process does not require a defendant to know that possession of a firearm while subject to a domestic violence restraining order is illegal under 18 U.S.A. § 922(g)(8).
First Amendment
Boroff v. Van Wert City Board of Education, 220 F.3d 465 (6th Cir. 2000). School board did not violate student's First Amendment rights to freedom of expression when it banned (Marilyn Manson) T-shirts and other clothing with offensive illustrations, drug, alcohol or tobacco slogans. Court distinguished Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969)(striking down ban on black arm bands to protest Vietnam war). Applied standard from Bethel School District No. 403 v. Fraser, 478 U.S. 675, 106 S.Ct. 3159, 92 L.Ed.2d 549 (1986)(school district permissibly disciplined student for offensively lewd & indecent speech at a school assembly) & Hazelwood School District v. Kuhlmeier, 484 U.S. 260, 108 S.Ct. 562, 98 L.Ed.2d 592 (1988)(school district did not violate First Amendment by exercising editorial control over content of school-sponsored publication).
International Ass'n of Firefighters, Local No. 3808 v. City of Kansas City, 220 F.3d 969 (8th Cir. 2000). City of Kansas City violated the First Amendment by enacting ordinance prohibiting supervisory personnel from belonging to same union as non-supervisory personnel.
Haddad v. Wall, ___ Cal. ___ (C.D. Cal. No. 98-0130 RT, filed 8/1/00). California statute (Cal. Civ. Code § 47.5) allowing police officers to sue for defamation for lodging false misconduct complaints against the officer discriminates on the basis of content and thus violates the First Amendment.
Santa Fe Independent School Dist. v. Doe, 530 U.S. ___, 120 S.Ct. ___, 147 L.Ed.2d 295 (No. 99-62, filed 6/19/2000). School district's policy permitting a student-led and student-initiated prayer over the P.A. system at football games constitutes an establishment of religion and violates the First Amendment.
Beach v. City of Olathe, 97 F.Supp.2d 1065 (D.Kan. 19__). Police officer's statements touched upon matters of public concern and were protected by the First Amendment.
Bunker v. City of Olathe, 97 F.Supp.2d 1241 (D.Kan. 19__). Defendants were not entitled to immunity on police officer's § 1983 claims of retaliation for exercising his right to free speech.
Hill v. Colorado, 530 U.S. ___, 120 S.Ct. ___, 147 L.Ed.2d 597 (No. 98-1856 filed 6/28/2000). The Court upheld a Colorado statute (Colorado Rev. Stat. sect.18-9-122(3)) making it unlawful for a person to knowingly approach within 8 feet of another person without that person's consent in order to pass a leaflet, display a sign, orally protest, etc. if such contact occurs within 100 feet of a health care facility. The Court acknowledged the demonstrators valid First Amendment interests. However, it held that statute was a valid time, place and manner restriction. The state had a significant and legitimate interest protecting those entering health care facilities from unwanted communication, and the statute left open ample alternate channels of communications.
United States v. Playboy, ___ U.S. ___, ___ S.Ct. ___, 146 L.Ed.2d 865 (No. 98-1682, filed May 22, 2000). Section 505 of the Telecommunications Act of 1996, 47 U.S.C. § 561, requires cable television operators primarily dedicated to sexually oriented programing to either fully block those channels, or limit their transmission to hours when children are unlikely to be viewing. The Court struck down the law as violative of the First Amendment because the law failed to employ the least restrictive means for addressing the problem.
FLSA
Christensen v. Harris County, Texas, 529 U.S. 576, 120 S.Ct. 1655, 146 L.Ed 2d 621 (2000). A public agency governed by the compensatory time provisions of the Fair Labor Standards Act (29 U.S.C. 207(o)), may, absent a preexisting agreement, require its employees to use accrued compensatory time. Affirming Moreau v. Harris County, Texas, 158 F.3d 241 (5th Cir. 1998), and disagreeing with a Department of Labor opinion letter on the same subject.
Gangs
State v. Pham, ___ Kan. App. 2d ___, ___ P.3d ___ (No. 82596, filed 9/1/2000). Asian gang banger pointed gun at someone's head. Was arrested a couple weeks later and a gun was found in car. Prosecutor couldn't show it was gun used in aggravated assault, and it denied the defendant a fair trial when she tried to introduce it in evidence. No error to allow detective to testify about assignment to gang unit and his work, but where there was no connection to the defendant, admission of gang evidence was an abuse of discretion. "Gang evidence may be admissible to demonstrate witness bias, i.e., that fellow members of gangs could lie to protect one another. [State v. Roaden], 26 Kan. App. 2d at 445. It also may be admissible "to show a motive for an otherwise inexplicable act." If the evidence is to be used to support motive, however, the prosecution must first demonstrate that gang membership or activity is related to the crime charged. See State v. Sims, 265 Kan. 166, Syl. ¶¶ 5, 960 P.2d 1271 (1998); see also State v. Jamison, 269 Kan. ___, ___ P.3d ___ (No. 81,644, filed July 14, 2000) (evidence of gang involvement not admissible under K.S.A. 60-455; admissible if relevant to motive, identity)."
State v. Jamison, ___ Kan. ___, ___ P.3d ___ (No. 81644, filed July 14, 2000) Evidence of gang involvement is not evidence of a crime or civil wrong under K.S.A. 60-455, and is admissible if relevant.
Habitual Violator
State v. Logan, ___ Kan. App. 2d ___, ___ P.3d ___ (No. 83,831 filed 12/15/2000). Following State v. Bowie, 268 Kan. 794, 999 P.2d 947 (2000), court of appeals holds that persons who have never had a driver's license cannot be convicted of driving while habitual in violation of K.S.A. 8-287. Only appropriate charge is driving without a valid driver's license pursuant to K.S.A. 8-235 (or STO 192).
State v. Williams, 27 Kan. App. 2d 69, 998 P.2d 121 (2000). Jury instruction stated, "Deliberate ignorance of Mr. Williams' status as a habitual violator resulting from his acts or failure to act with a conscious purpose to avoid notification of such status constitutes actual knowledge of such status." Instruction was not clearly erroneous and does not create an impermissible mandatory presumption. See Lewis, 263 Kan. at 858.
Identification
State v. Maybin, 27 Kan. App. 2d 189, 2 P.3d 179 (2000). One person show ups, while not a favored method of identification, are permissible when they are not unnecessarily suggestive and they occur shortly after the commission of an offense because time is a crucial element when there is an eyewitness who can identify the suspect and any delay could impede the police investigation. Factors that will be considered include the witnesses opportunity to view the criminal at the time of the crime, the level of certainty demonstrated by the witness at the confrontation and the length of time between the crime and the confrontation.
Interrogation
State v. Rosas, ___ Kan. App. 2d ___, ___ P.3d ___ (No. 84,346 filed 12/22/2000). Failure to notify a foreign national of their right to contact their consul pursuant to 36(1)(b) of the Vienna Convention does not require suppression of evidence. Also in-custody statements were freely, voluntarily and knowing given, and consent to search is voluntary despite the per se violation of K.S.A. 75-4351(e) which requires appointment of an interpreter.
Wardlow v. State, 2 P.3d 1238 (Alaska 2000). Despite statutory right to immediate telephone calls, police officer has no duty to provide arrestee with officer's own cellular phone to contact an attorney. Officer safety considerations do not require immediate, mobile telecommunications due to the volitility of the situation until they reach the place of detention. Here a rape suspect was arrested and being transported to the police station so he could call his attorney. When the officer told the suspect where they were going the suspect said, "About all they can do for me at Tudor and fucking Bragaw is lick the shit off my dick." No error to admit the voluntary, non-coerced statement into evidence.
Dickerson v. United States, 530 U.S. 428, 120 S.Ct. 2326, 147 L.Ed.2d 405 (2000). Congress cannot overturn through legislation a constitutional holding of the court. The standard for admissibility is whether the suspect received Miranda warnings before being interrogated, not the standard set forth in 18 U.S.C. § 3501 where the admissibility of such statements turns only on whether or not they were voluntarily made
State v. Hershberger, ___ Kan. App.2d ___, 5 P.3d 1004 (No. 82,400 filed 5/5/2000). Police and court officials did not violate the defendant's Fifth Amendment rights by penalizing him for failing to state his identity in court, nor in fingerprinting and photographing him during book-in at the jail. Once validly arrested, submission to fingerprinting and photographing are not testimonial in nature.
United States v. Hudson, 210 F.3d 1184 (10th Cir. 2000). INS agents did not violate defendants' Miranda rights during routine border stop and detention to ask questions concerning vehicle ownership, cargo, destination, and travel plans. Although agents had a "be on the lookout on the vehicle for narcotics transportation, none of the questions were so "distinctly accusatory" as to convert the encounter into custody. The questions were asked over a relatively brief ten-minute time period and the entire encounter prior to arrest lasted no more than fifteen minutes.
State v. Lewis, ___ Kan.App.2d ___, 5 P.3d 531 (No. 81,171 filed 4/21/2000). A defendant's failure to object at trial to elicited testimony about the defendant's silence following Miranda warnings in violation of Doyle v. Ohio, 426 U.S. 610, 618, 49 L. Ed. 2d 91, 96 S. Ct. 2240 (1976), precludes the defendant from raising the issue on appeal. Defendant testified that he was paid $5 and a black watch for using his truck to help another move some belongings. The black watch was stolen in a burglary. On cross-examination, the State asked the defendant about his recollection of the night of the robbery. When the defendant admitted that he did not tell an officer about receiving the $5 and the black watch as payment, he explained by stating, "I told Detective Wise that I chose not to say nothing further until I had a lawyer present. That is why it's not in his report." In the course of explaining the omission, the defendant stated he had signed the Miranda rights form "under duress" because he was intoxicated and did not want to talk without a lawyer present, but the detective had told him he could not have a lawyer until he signed the form. The court held there was no Doyle violation and even if there were, there was no contemporaneous objection.
Combs v. Coyle, ___ F.3d ___ (6th Cir. No. 97-4369, filed 2/23/00). An accused's silence prior to receiving Miranda warnings may not be used against him in the prosecution's case-in-chief. Defendant gunned down his girlfriend and her mother, and was wounded by an off-duty officer. Another officer arrived, took shotgun from Defendant, and asked what happened. Defendant did not say anything. Question was repeated and Defendant said "talk to my lawyer." Court held statement should not have been admitted.
Miscellaneous
Diesel v. Town of Lewisboro, ___ F.3d ___ (2d Cir. Nos. 99-7831 & 99-7840, filed 2000). Officer's selective enforcement claim under the equal protection clause cannot be based on other officers refusal to close their eyes to serious misconduct in accordance with the tradition of the "blue wall of silence." Investigation of Diesel being passed out or asleep in a police car was not in retaliation for his cooperation in an internal affairs investigation, and was reasonable under the circumstances. Jury verdicts in Diesel's favor in the amounts of $500,000 (compensatory) and $155,000 (punitive) and $1.5 million reduced to $200,000 are set aside.
State v. Calvert, ___ Kan.App.2d ___, 5 P.3d 537 (2000). Kansas does not recognize a defense of innocent possession of marijuana except under circumstances prescribed by K.S.A. 1999 Supp. 65-4162(a). Thus, court did not err in refusing jury instruction that would allow acquittal if defendant possessed it solely for purposes of disposal.
In Re One 1993 Chevrolet Corsica, VIN # 1G1LT5345PY166194, 268 Kan. 759, 999 P.2d 927 (2000). District judge did not abuse discretion in ordering forfeited car to be returned and requiring city of Dodge City to pay all towing and storage fees. Owner Rodriguez left it with a car shop then left the country. She returned and found it in a parking lot & reported it stolen. Police seized it and held it for evidence. Two weeks later, Rodriguez reported car wasn't stolen but was sold to Robles by Rodriguez's estranged husband, Torres. Robles requested the car be returned, but claim was denied because Torres was being investigated for dealing in stolen vehicles. Torres pled on 9/8/98 and car was no longer needed as evidence. County attorney filed motion to dispose of car pursuant to K.S.A. 22-2512(2)(g) [now (3)(g)]. At hearing on 9/30/98, Rodriguez testified she wished to ratify Torres' sale of the car. County attorney still would not release car to Robles, even after district court ordered it be returned. Court held that Robles committed no wrongdoing and was a bona fide purchaser.
Natl. Congress for Puerto Rican Rights v. City of N.Y., ___ F.3d ___ (2000 U.S. Dist. LEXIS 6083 (S.D.N.Y.)). Statistics on racial profiling requested by city council are not protected from discovery under either the attorney-client and/or the work-product privileges. The documents in dispute were not prepared for the purpose of obtaining legal advice, nor"because of" pending or anticipated litigation."
State v. Wright, 26 Kan. App. 2d 879, 995 P.2d 416 (2000). City police officer can use a Uniform Complaint and Notice to Appear to require the defendant to appear in district court.
Denius v. Dunlap, ___ F.3d ___ (7th Cir. No. 99-1402, filed 4/11/00). Termination of a public employee's job for refusing to sign release allowing access to "all records" about himself, including attorney-client, medical and financial information, violates the employee's Free Speech and Due Process rights. However, only the due process interest in refusing to disclose medical information was clearly established in 1996, so defendants were entitled to qualified immunity.
City of Erie v. Pap's A.M. tdba "Kandyland, 529 U.S. ___,120 S.Ct. 1382, 146 L.Ed.2d 265 (2000). Public indecency ordinance that proscribes nudity in public places does not violate the First and Fourteenth Amendments. The ordinance is content-neutral and satisfies the four-part test in United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968).
Case Name Unknown, Profiled in 10 K.L. 8 (week of 3/26 to 4/1/2000). 10th Circuit lets stand U.S. District Judge Kane's order allowing U.S. Marshals to seize Denver Police Department's Internal Affairs files as part of a police brutality suit filed by Matthew Combs. Combs is suing Denver Police Officer Timothy McCleer, former Police Chief Tom Sanchez and the City of Denver. Combs claims McCleer beat him unconscious after an accident on September 4, 1998. The city of Denver had failed to comply with an earlier discovery order to hand the files over to Comb's lawyer. Kane also fined the City $10,000 and ordered the files to be turned over by March 27, 2000.
Rucker v. Davis, 203 F.3d 627 (9th Cir. 2000), reversed 237 F.3d 1113 (9th Cir. en banc 2001), 9th Circuit reversed Rucker v. Davis, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 00-1781, filed 3/26/2002). HUD one strike provision for drug activity codified in 42 U.S.C. § 1437d(l)(6) and 24 C.F.R. 966.4(f)(12)(i)(B) and (l)(2)(ii)(B) can be enforced against innocent tenant.
Reno v. Condon, 525 U.S. ___, 120 S.Ct. 666, 145 L.Ed.2d 587 (2000). The 1994 Driver's Privacy Protection Act does not violate Congress' powers under the commerce clause, nor violate the 10th Amendment.
Off-Duty Intervention
State v. Epps, ___ Kan. App. 2d ___, 9 P.3d 1271 (2000). Off-duty officer in uniform who arrested suspect on misdemeanor warrant while working as a mall security guard was acting as a law enforcement officer during the arrest. Search of suspect's pockets incident to arrest was authorized.
Brown v. Gray, 227 F.3d 1278, 1286 (10th Cir. 2000). Off-duty Denver officer in street clothes in his own private vehicle had a traffic dispute with another motorist. Officer approached other vehicle, identified himself as an officer (although he did not show badge or ID), and pointed his gun at the motorist. Motorist drove off and officer pursued him. After another stop and verbal exchange, motorist drove off again. Officer fired several shots into the car and hit the motorist about 3 times, badly injuring him. Officer claimed motorist brandished a weapon at him, thus he attempted arrest. He claimed motorist appeared to be reaching for a weapon and attempting to flee. Denver has an "always armed/always on duty" policy. Motorist sued officer & Denver alleging various state and federal claims, including a civil rights claim against Denver for failure to train. Motorist alleged training program made no distinction between off-duty and on-duty scenarios, despite the disadvantages an officer has while off-duty (no patrol car, uniform, radios, handcuffs, etc). Officer cross-claimed against Denver for indemnification and defense costs. Motorist and officer settled prior to trial for $150,000. Officer assigned motorist cross-claim for defense costs against Denver. Jury found motorist proved failure to train claim, but found officer was not acting within the scope of his employment. Judgement for motorist for $400,000. On appeal, 10th Circuit held there was more than sufficient evidence for jury to determine training program was inadequate, this was a usual and recurring situation, the failure to train constituted deliberate indifference, and that the failure to train was the cause of the motorists injuries. Also, the district court erred in denying the motorist judgment for approximately $123,300 in defense costs the officer assigned to him. Case was remanded for further consideration and attorney fees.
Search & Seizure
Unites States v. King, ___ F.3d ___ (10th Cir. No. 99-3275, filed 08/23/00). Lawrence officers had information that "Black" and "Red" were selling drugs out of 1206 Pennsylvania. They also learned that "Black" (King) had a warrant for failure to appear at sentencing on a federal drug charge involving a firearm. A CI had also told police that when at the residence a couple weeks before, "Black" threatened her boyfriend with a firearm. Police obtained a search warrant to search for King. They knocked on the back door, and when King answered, they entered, announcing "police, search warrant, get down." They also tackled King. Once he was in custody, they performed a protective sweep of the house, and saw illegal drugs and firearms that were seized pursuant to a second warrant. King alleged the manner of executing the first warrant was unreasonable, and the second warrant resulted from an illegal protective sweep. The Circuit rejected these arguments, finding a no-knock entry was reasonable based on the presence of firearms, King's known propensity to use them, and the fact that Black and Red were both gang members. The Court said even if the sweep was illegal, nothing was seized as a result of it, so there was nothing to suppress.
http://ca10.washburnlaw.edu/cases/2000/08/99-3275.htm
State v. Dwyer, ___ Kan.App.2d ___, ___ P.3d ___ (No. 83,746, filed 12/8/2000). Officers conducting a knock-and-talk smelled burning marijuana and asked Dwyer if he wanted to show them where it was. Dwyer responded "yeah, okay," and turned and entered the apartment, leaving the door open behind him. Officers interpreted that as an invitation to enter, and they did, finding more drugs. Dwyer contended that officer ordered him to show them where the marijuana was; they did not ask him. He also claims he did not consent to their entry, even though he did not protest it. Refusing to reweigh the conflicting evidence, the Court of Appeals affirmed denial of a motion to suppress. The court held that Dwyer was not detained during the knock and talk. "The politely and calmly executed "knock and talk" conversation outside the apartment did not constitute an investigatory detention. See United States v. Park-Swallow, 2000 WL 82183 (D. Kan., April 18, 2000) (noncoercive "knock and talk" a consensual encounter); see also State v. Reason, 263 Kan. 405, 412, 951 P.2d 538 (1997) (officers' initial approach to sleeping defendant in parked automobile a voluntary encounter)."
United States v. Davis, ___ F.3d ___ (D.C. Cir. No. 00-3016 filed 12/29/2000). Information police obtained from a citizen 911 call describing a man fleeing the scene of a shooting provides sufficient reasonable suspicion to stop suspect who fit description, even though the government failed to produce a tape of the call.
United States v. Moore,___ F.3d ___ (1st Cir. No. 00-1174 filed 12/29/2000) Officers who were justified in making investigatory stop of defendant in high crime area may also require a suspect to reveal object he is hiding in his hand, which was obscured from officers' view.
United States v. Hishaw, 235 F.3d 563, 570-71 (10th Cir. 2000). Stop and pat-down of defendant was justified by officer's reasonable belief that defendant was engaging in drug sales while having "lots of contact" with people in the parking lot, in view of his recent narcotics arrest and presence at an apartment where police were about to execute a search warrant. Pat-down was reasonable based on officer's experience that drug dealers are often armed.
State v. Box, ___ Kan. App. 2d ___, 17 P.3d 386 (2000). Warrantless search of a locked glove box incident to the arrest of the driver for a warrant and suspended driver's license was reasonable under the unique facts of this case. A paralyzed individual sitting in the front passenger seat, occupants with narcotics convictions (making it likely weapons were present), and inclement weather all contributed to the exigent circumstances present. Gun found in glove box was admissible. Court relies upon Chimel & six factor test in State v. Tygart, 215 Kan. 409, but declines to adopt bright line of Belton & State v. Press, 9 Kan.App.2d 589. Court curiously fails to mention Anderson, 259 Kan. 16.
State v. Rosas, ___ Kan. App. 2d ___, ___ P.3d ___ (No. 84,346 filed 12/22/2000). Failure to notify a foreign national of their right to contact their consul pursuant to 36(1)(b) of the Vienna Convention does not require suppression of evidence. Also in-custody statements were freely, voluntarily and knowing given, and consent to search is voluntary despite the per se violation of K.S.A. 75-4351(e) which requires appointment of an interpreter.
State v. Davis, 28 Kan.App.2d 75, 11 P.3d 1177 (2000). Defendant was sitting in back seat of a taxi with a person wanted on a forgery warrant. Officers removed wanted person and defendant, and patted them down. Finding nothing on defendant, officer grabbed his jacket out of the cab, intending to send defendant on his way. Officer felt hard object in jacket about the size of an ink pen, and seized 3 crack pipes containing residue. Court held pat-down of defendant and search of his jacket was not supported by reasonable suspicion, and could not be done incident to the arrest of the other person, even though he was in close proximity to the wanted person. Officer did not testify about any concern for his safety, and items in the jacket were not immediately apparent to him to be contraband.
United States v. Prieto-Zubia, 103 F.Supp.2d 1292 (D.Kan. 2000). In a hotel-interdiction case, the following factors amounted to probable cause to stop and search car: (1) Motel check-in from Midland/Odessa, a source city; (2) early check-in consistent with late-night travel; (3) payment for room in cash; (4) short trip to a nearby restaurant in a Gold Stratus; (5) Room registrant’s/car owner’s hit in NADDIS; (6) Stratus registration to a dealership in El Paso, which also had a NADDIS hit; (7) rendezvous at a restaurant connected with prior drug investigation; (8) rapid exchange of car keys with no conversation or greeting; (9) original drivers getting into a Green Achieva connected with a prior drug investigation; and (10) tool marks on passenger-side air bag cover.
United States v. Park-Swallow, 105 F.Supp.2d 1211 (D.Kan. 2000). KCK police officer was patrolling an area known for narcotics activity. He saw an illegally-parked car in front of a bar and pulled in behind it. While walking up to the car, the owner approached with a bag of groceries and asked if anything was wrong. The officer said the car was illegally parked and started walking around it, noticing an open beer can inside. The officer asked for license and registration, and ran a computer check, which showed a recent narcotics arrest. Officer then asked for consent to search. Defendant said, "sure, go ahead." Search yielded beer, a gun and drugs. Court held consent was the product of an illegal detention and suppressed the evidence, holding that a reasonable person was not free to leave until a ticket was issued. Although officer was not overly coercive, he never told the defendant she could refuse to produce her license, leave, or decline consent to search. Questioning the defendant about criminal conduct unrelated to the illegal parking or open container charge violated her rights under the Fourth Amendment.
City of Indianapolis v. Edmond, 531 U. S. 32, ___ S.Ct. ___, ___ L.Ed. 2d ___ (No. 99-1030, filed 11/28/00). Suspicionless drug interdiction checklanes are different from border, sobriety and driver's license checklanes and violate the Fourth Amendment. Primary purpose of a legal checklane must be in the interest of highway safety rather than a general interest in crime control. Indiana police stopped 1161 vehicles and arrested 55 motorists for drug-related crimes and 49 for other offenses. Each stop, absent reasonable suspicion or probable cause, lasted less than five minutes. Affirms the Seventh Circuit. Edmond v. Goldsmith, 183 F.3d 659 (7th Cir. 1999). Prior to this opinion, 11th Cir. allowed, while 6th, 10th & D.C. Circuit prohibited. Palmer v. Goldsmith, 183 F.3d 659 (7th Cir. 1999).
State v. Thomas, 28 Kan.App.2d 70, 12 P.3d 420, rev. denied 270 Kan. 70 (2000). The odor of marijuana on a person in custody, coupled with the detention facility's recognized security interest in preventing the introduction of such contraband within its walls, is sufficient to establish probable cause to strip search the person in question. See also State v. MacDonald, 253 Kan. 320, 324-25, 856 P.2d 116 (1993), the Kansas Supreme Court held that the mere odor of marijuana, standing alone, was sufficient to establish probable cause to conduct a warrantless search of an automobile.
State v. Davis, ___ Kan. App. 2d ___, ___ P.3d ___ (No. 82850, filed __/__/2000)(unpublished). Landlords cannot give consent to search a tenant's residence. Search & seizure of drugs was unconstitutional.
State v. Morris, 27 Kan. App. 2d 155, 999 P.2d 283 (2000). Police violated reasonable expectation of privacy by peering through 4"x5" opening in Venetian blind. Officers were on front porch and had to lean over off the porch to see through broken slats in the closed blinds.
State v. Savage, ___ Kan. App. 2d ___, 10 P.3d 765 (2000). Phone tip staying the caller lived in a house at a certain address and had access to the entire house, that one of his roommates was growing marijuana in the house on the kitchen window sill, and that he would admit an officer if one would come out, when corroborated by another officer, certainly supplies probable cause to issue a warrant for the residence. At the suppression hearing the state presented only the dispatching and searching officer's testimony. State alleged it wasn't offered to prove truth of whether caller voluntarily consented to search, just officer's perception of whether he gained voluntary consent. District court erred in not considering officer's testimony going to apparent authority. Although it may be better to present direct testimony from the party suppling information to the officer, it is usually not a precondition for its consideration. The district court's granting of motion to suppress was reversed.
People v. Comacho, ___ Cal. ___ (No. S075720, filed 7/27/00). California Supreme Court holds that officer's warrantless entry into residential side yard at 11:00 p.m. and peek through an uncurtained window not visible from the sidewalk violated the Fourth Amendment. Officers were responding to an excessive noise complaint, but heard only nonexcessive noise from defendant's stereo. Saw defendant packaging drugs through an 8X4 foot window. Officers called for backup and then entered through window. Evidence should have been suppressed.
United States v. Meindl, 83 F.Supp.2d 1207 (D. Kan. 1999). Shawnee County Sheriff's Deputies entry through a window to arrest subject on a misdemeanor bench warrant for driving while suspended did not violate the Fourth Amendment. According to the prosecutor, Defendant is having a psychiatric evaluation and will probably plead to the charges, reserving the right to appeal.
Hell's Angels Motorcycle Corp. v. Monterey County, Cal., ___ F.Supp. ___ (N.D. Cal. No. C-99-1512-VRW, filed 3/13/00). Persons with a privacy interest in documents which have been seized by law enforcement officers must be given notice and an opportunity to challenge a subpoena for the property obtained by a third party. Here, law enforcement seized Hell's Angels documents in a robbery & murder investigation. The FBI subpoenaed them for a drug investigation. The court held the law enforcement officers should have given the Hell's Angels notice and an opportunity to be heard before they complied with the subpoena. Otherwise, law enforcement violates the Hell's Angels Fourth Amendment rights..
Bond v. United States, 529 U.S. 334, 120 S.Ct. 1462, 146 L.Ed.2d 365 (2000). Manipulation of soft-sided luggage in an overhead rack during a bus station stop amounts to a Fourth Amendment search. The brick of methamphetamine discovered by customs agents must be suppressed because agents violated defendant's reasonable expectation of privacy.
Price v. Kramer, 200 F.3d 1237 (9th Cir. 2000). Jury did not err in awarding a $245,000 verdict against three Torrance, CA police officers for racially biased actions and excessive force. Three 17 year-old boys were stopped in their car for a traffic violation. They were removed at gun point; when frisked, one officer grabbed each boy's testicles and then forcefully squeezed them. The three-judge panel upheld the verdict, noting that police mistreatment of young people and minorities is not an isolated incident in the L.A. area or elsewhere.
Oliver v. Woods, et al., 209 F3d. 1179 (10th Cir. 2000). Officers were entitled to qualified immunity where they detained, then arrested plaintiff on somewhat shaky reasonable suspicion to believe he was involved in illegal oil dumping or trespass. Suspect refused to identify himself or present a driver's license as required by a statute similar to K.S.A. 22-2402(1). Concluding there was reasonable suspicion for an investigatory detention, the court held officers could have believed there was probable cause to believe plaintiff committed interference with an arrest or detention and/or disobeying a lawful order, therefore arrest was lawful.
United States v. Miles, 82 F.Supp.2d 1201 (D. Kan. 2000). Officer's entry into defendant's apartment to serve arrest warrant was lawful.
United States v. Kennedy, 81 F.Supp.2d 1103 (D. Kan. 2000). Defendant did not have a Fourth Amendment privacy interest in his internet subscriber information.
Florida v. J. L., 529 U.S. 266, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000)(affirming 727 So. 2d 204 (1999)). Anonymous tip that a black male wearing a plaid shirt standing in front of a certain pawnshop is carrying a concealed firearm, is not sufficiently reliable, absent some corroboration by police officers, to justify investigatory detention and frisk. Weapon seized should have been suppressed.
Nelson v. McMullen, 207 F.3d 1202 (10th Cir. 2000). Traffic stop for speeding which resulting in a roadside exposure of breasts to disprove the existence of a tattoo was not unreasonable under the circumstances, so officer is entitled to qualified immunity. However, officer should have better controlled the exposure.
State v. Shively, 268 Kan. 589, 999 P.2d 952 (2000). Officer must hold an objectively reasonable belief that an emergency situation exists in order to justify a no-knock entry. Serving practically all warrants in a no-knock fashion violates the Richards v. Wisconsin rule (520 U.S. 385, 117 S.Ct. 1416, 137 L.Ed.2d 615 (1997)). Here CI had advised police that no weapons were present and the target of the warrant was expected to be found asleep. See also Wilson v. Arkansas, 514 U.S. 927, 115 S.Ct. 1914, 131 L.Ed.2d 976 (1995); State v. Wakefield, 267 Kan. 116, 977 P.2d 941 (1999); United States v. Moore, 91 F.3d 96 (10th Cir. 1996); Murray v. United States, 487 U.S. 533, 108 S.Ct. 2529, 1010 L.Ed.2d 472 (1988)(illegal warrantless search does not require suppression of evidence observed if evidence relied upon in obtaining later warrant is wholly independent of the prior search).
United States v. Broomfield, 201 F.2d 1270 (10th Cir 2000). Based on the totality of the circumstances, consent to search bag in the Topeka bus station was voluntary. DEA agent Thrower boarded bus alone, not showing a weapons, and showed Broomfield his badge and asked if he could speak with him. Broomfield agreed. After answering questions about a five-day trip with one small duffel bag, Thrower asked consent to search, yielding 139.9 grams of cocaine base. Broomfield said "sure" but became visibly nervous. Although Thrower did not tell him he was free to leave or that he could refuse consent, no reasonable person would have felt they were not free to leave. Refuses to follow 11th Circuit decisions requiring officer to tell persons they have a right to refuse.
Commonwealth of Massachusetts v. Rodriguez, ___ A.2d ___ (Mass. SJC-07984, filed 1/18/00). Drug interdiction roadblocks violate the Massachusetts state constitution because they are for purposes of discovering evidence of a crime, unlike DUI roadblocks which promote public safety by removing deadly drivers from the roadways.
State v. Beal, 26 Kan. App.2d 837, 994 P.2d 669 (2000). An arrest warrant not only allows officers to search the house of the person named in the warrant, but also a detached garage if officers have a reasonable basis for believing the person named in the warrant will be found therein.
Traffic Stops
United States v. Hishaw, ___ F.3d ___ (10th Cir. No. 99-6258, filed 12/20/2000). Stop and pat-down of defendant was justified by officer's reasonable belief that defendant was engaging in drug sales while having "lots of contact" with people in the parking lot, in view of his recent narcotics arrest and presence at an apartment where police were about to execute a search warrant. Pat-down was reasonable based on officer's experience that drug dealers are often armed.
State v. Steen, 28 Kan.App.2d 214, 13 P.3d 922 (2000). Officer saw a suspicious-looking C3 in a car and ran the tag through some database showing a C3 was "associated with" the car and had an arrest warrant. The officers stopped the car based on that information, and found marijuana after arresting the driver, who was the person with the "association.". The court held reasonable suspicion for a car stop can be based on past criminal activity, but there was insufficient information in the record about the database to determine whether the officer was relying on reliable information. Case remanded for proof the database specifically links the defendant with the vehicle as a driver or passenger or somehow provides specific information to link the driver with criminal activity.
City of Indianapolis v. Edmond, 531 U. S. 32, ___ S.Ct. ___, ___ L.Ed. 2d ___ (No. 99-1030, filed 11/28/00). Suspicionless drug interdiction checklanes are different from border, sobriety and driver's license checklanes and violate the Fourth Amendment. Primary purpose of a legal checklane must be in the interest of highway safety rather than a general interest in crime control. Indiana police stopped 1161 vehicles and arrested 55 motorists for drug-related crimes and 49 for other offenses. Each stop, absent reasonable suspicion or probable cause, lasted less than five minutes. Affirms the Seventh Circuit. Edmond v. Goldsmith, 183 F.3d 659 (7th Cir. 1999). Prior to this opinion, 11th Cir. allowed, while 6th, 10th & D.C. Circuit prohibited. Palmer v. Goldsmith, 183 F.3d 659 (7th Cir. 1999).
State v. Maybin, 27 Kan. App. 2d 189, 2 P.3d 179 (2000). Whether an officer has reasonable suspicion to stop a car depends on the facts of each case. Location, time of day, previous reports of crime in the area and furtive actions of a suspect may well justify a stop. However, time of day and reports of crime in the area will not in and of themselves justify a Terry stop.
Florida v. Wilson, No. 734 So. 2d 1007 (1999), cert. denied ___ U.S. ___ (No. 99-1468, 5/15/00). Police officer conducting a car stop cannot order a passenger to return and remain in the vehicle in the absence of (1) a reasonable suspicion of criminal activity, or (2) a reasonable belief that the passenger posed a threat to the safety of the officer, the passenger or others.
United States v. Wilson, ___ F3d. ___, 2000 WL 253604 4th Cir.) Turning around in a gas station parking lot and going back the other way, resulting in avoidance of a drivers' license checkpoint over 500 feet away was not a sufficient reason to stop the vehicle. All driving maneuvers were legal, and fact that defendant avoided the checkpoint established no more than a hunch defendant was trying to avoid the checkpoint. No reasonable suspicion to stop the vehicle.
United States v. Hudson, 210 F.3d 1184 (10th Cir. 2000). INS agents did not violate defendants' Miranda rights during routine border stop and detention to ask questions concerning vehicle ownership, cargo, destination, and travel plans. Although agents had a "be on the lookout on the vehicle for narcotics transportation, none of the questions were so "distinctly accusatory" as to convert the encounter into custody. The questions were asked over a relatively brief ten-minute time period and the entire encounter prior to arrest lasted no more than fifteen minutes.
Nelson v. McMullen, 207 F.3d 1202 (10th Cir. 2000). Traffic stop for speeding which resulting in a roadside exposure of breasts to disprove the existence of a tattoo was not unreasonable under the circumstances, so officer is entitled to qualified immunity. However, officer should have better controlled the exposure.
City of Manhattan v. Larson, 26 Kan. App.2d 851, 994 P.2d 1087 (2000). Officer's mistaken belief that truck tag had expired on December 31 (grace period under K.S.A. 8-134 allows until February 15 to renew) is reasonable suspicion for a traffic stop resulting in a DUI arrest, even though officer was unaware of grace period.
Use of Force
State v. Anderson, ___ Kan. ___, ___ P.3d ___ (No. 83,433, filed 11/3/2000). District court erred in dismissing involuntary manslaughter charges against person who was fleeing from police on a motorcycle. Although trooper failed to exercise due care for the safety of others and was guilty of vehicular homicide, his negligence or criminal responsibility is not a defense to charges against the defendant. Officers have a duty to apprehend and arrest law violators.
Campbell v. City of Leavenworth, ___ Kan. App. 2d ___, 13 P.3d 917 (filed 11/3/2000). Officers did not use excessive force when they shot and killed a mentally disturbed person on a breach of trust call. Deceased told officers they would have to kill him or he would kill them. Officers made two attempts to subdue deceased with a dog, but on the second attempt deceased rushed officers with a large (8-inch) barbeque fork raised over his head. Deceased got within 8 feet of officer before officer fired twice, killing deceased. The fact that plaintiff’s expert disagreed with the police officer’s actions did not make them unreasonable.
Hicks v. Woodruff, 216 F.3d 1087 (10th Cir. 2000, unpublished). Off-duty officer could have feared for his safety when he tried to stop a suspected check forger who struck the officer and took the officer's gun. Officer had probable cause to believe Hicks was a fleeing felon who posed a significant threat of death or serious bodily injury to the officer or others.
Brown v. Gray, 227 F.3d 1278, 1286 (10th Cir. 2000). Off-duty Denver officer in street clothes in his own private vehicle had a traffic dispute with another motorist. Officer approached other vehicle, identified himself as an officer (although he did not show badge or ID), and pointed his gun at the motorist. Motorist drove off and officer pursued him. After another stop and verbal exchange, motorist drove off again. Officer fired several shots into the car and hit the motorist about 3 times, badly injuring him. Officer claimed motorist brandished a weapon at him, thus he attempted arrest. He claimed motorist appeared to be reaching for a weapon and attempting to flee. Denver has an "always armed/always on duty" policy. Motorist sued officer & Denver alleging various state and federal claims, including a civil rights claim against Denver for failure to train. Motorist alleged training program made no distinction between off-duty and on-duty scenarios, despite the disadvantages an officer has while off-duty (no patrol car, uniform, radios, handcuffs, etc). Officer cross-claimed against Denver for indemnification and defense costs. Motorist and officer settled prior to trial for $150,000. Officer assigned motorist cross-claim for defense costs against Denver. Jury found motorist proved failure to train claim, but found officer was not acting within the scope of his employment. Judgement for motorist for $400,000. On appeal, 10th Circuit held there was more than sufficient evidence for jury to determine training program was inadequate, this was a usual and recurring situation, the failure to train constituted deliberate indifference, and that the failure to train was the cause of the motorists injuries. Also, the district court erred in denying the motorist judgment for approximately $123,300 in defense costs the officer assigned to him. Case was remanded for further consideration and attorney fees.
Headwaters Forest Defense v. County of Humboldt, 276 F.3d 1125, 1131 (9th Cir. 2002). Officers violated the Fourth Amendment by using Capstun against non-violent, peaceful protesters who refused to voluntary leave and placed themselves in self-restraint devices after being advised they were trespassing.
ADA
Spades v. City of Walnut Ridge, ___F.3d ___ (No. 98-4119, 8th Cir. 1999). Officer who used city-issued handgun to attempt suicide was terminated based on fear of exposure to legal liability. Officer sued agency claiming ADA violation. 8th Circuit affirmed officer's termination holding that officer's depression was controlled by medication and counseling, therefore not a disability pursuant to Sutton and Murphy. "Increased potential liability associated with an employee's past activities is a legitimate concern of the City, particularly where there is known violent behavior."
Alsbrook v. City of Maumelle, ___ F.3d ___ (WL 521709 (8th Cir. 1999). Officer candidate rejected based on failure to meet POST vision standards. Candidate sued claiming violation of title II of the ADA. 8th Circuit held that Congress did not abrogate State's immunity and that 11th Amendment barred suit against the State.
Equal Employment Opportunity Commission v. Wal-Mart Stores, Inc., ___ F.3d ___ (10th Cir. No. 98-2015, 8/23/99). Employer must do more than produce a written nondiscrimination policy to avoid vicarious liability for $75,000 in punitive damages for the misdeeds of its managers. Must make good faith effort to educate employees about the law and the policy.
Albertson's Inc. v. Kirkinburg, ___ U.S. ___, 119 S.Ct. 2162, 144 L.Ed.2d 518 (1999). Employer entitled to enforce visual acuity standard against employee truck driver who had obtained waiver of standard under experimental federal program.
Sutton v. United Airlines, ___ U.S. ___, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999). Determination of whether disability substantially limits major life activity held properly made with reference to mitigating measures. Severely myopic individuals (20/200 or worse right eye, 20/400 or worse left eye; correctable to 20/20 or better with glasses/lenses) denied employment based on a 20/100 uncorrected standard were not disabled where corrective lenses allowed individuals to function identically to people without similar impairment.
Murphy v. United Parcel Service, Inc., ___ U.S. ___, 119 S.Ct. 2133, 144 L.Ed.2d 518 (1999). Determination of whether disability substantially limits major life activity held properly made with reference to mitigating measures. High blood pressure controlled by medication not a disability.
Smith v. Midland Brake, Inc., ___ F.3d ___ (10th Cir. 1999)(en banc). A person who is unable to perform the essential functions of his current job with or without reasonable accommodation but could perform the essential functions of other available jobs in the company is a "qualified individual with a disability." If a reasonable accommodation was not available to help the employee perform his current job, then the employer must consider reassignment.
Civil & Criminal Liability
Spencer v. Knapheide Truck Equipment Co., 183 F3d 902 (8th Cir. 1999). Plaintiff, a pre-trial detainee suffered injuries rendering him a quadriplegic after he was placed with his hands cuffed behind his back in a police wagon and was thrown forward into the bulkhead of the passenger compartment. There were no seatbelts or other safety restraint devices installed in the compartment. The Boards decision to use patrol wagons without seatbelts was based on its concern that the individuals transported in the wagon, even those who were handcuffed, could use the seatbelt as a weapon to harm an officer, other passengers being transported in the wagon, or even themselves. Plaintiff claimed that the Board maintained an official policy of purchasing and using patrol wagons that were inherently unsafe. The Appellate Court affirmed the District Court’s decision that the Board was not deliberately indifferent to plaintiff’s constitutional rights.
State v. Cheek, ___ Kan. App. 2d ___ (1999). Former Kansas City police officer's voluntary manslaughter conviction upheld. Off duty officer fired four shots at Milton Fostor in a Bonner Springs Sports Bar.
Butera v. District of Columbia, ___ F.Supp. ___ (D.C. 10/20/99)(profiled in 9 K.L. 499 p. 3). Jury awarded mother of Eric Butera $98 million after police failed to protect him. Butera overheard info regarding a murder while buying drugs. Police asked him to make another buy, and repeatedly say they would protect him. Sent him to make the buy without surveillance equipment. Butera was attacked, robbed & killed before entering the house. Police did not find out until 40 minutes later when someone called 911.
Brown v. Oneonta, ___ F.3d ___ (2d Cir. 98-9375 10/26/99). LEOs did not deny blacks equal protection by conducting a "sweep" of a small, predominantly white town after and elderly woman said she a "young black man" broke into her home and cut his own hand with a knife while struggling with her. Officers did Terry stops of more than 200 young black males and checked their hands. Court found no intentional discrimination. Plaintiffs were not questioned "solely on the basis of their race . . . but on the altogether legitimate basis of a [somewhat vague] physical description given by the victim of a crime."
California Attorneys for Criminal Justice v. Butts, 195 F.3d 1039, (9th Cir. 1999), pet. for cert. filed ___ U.S. ___ (Nos. 97-56499 and 97-56510). Argued 1st week of October 1998. Case poses two basic questions: (1) Does the Fifth Amendment prohibit a police officer from deliberately continuing an interrogation after a suspect asks for a lawyer? and (2) If the interrogation violates Miranda, can the officer be held liable in a 42 U.S.C. § 1983 action? Ninth Circuit said yes to both questions.
Taylor v. Monfils, 165 F.3d 511 (7th Cir. 1998), cert. denied, ___ U.S. ___ (No. 98-1744). Deputy Chief of Detectives not entitled to qualified immunity on state-created danger claim. Chief of Detectives assured informer and prosecutor that tape of informer's phone call would not be released, but did nothing to prevent release which led to informer's murder.
Lovelace v. Anderson, WL 351150 (Md.App. 1999). Off-duty police officer working security at a hotel was entitled to qualified immunity when he intervened in an armed robbery and became involved in a gun battle with the robbers. One of his shots struck a hotel guest. When he intervened, he reverted to police officer status and there was no evidence he acted with malice.
Williams v. Bramer, et al., 180 F.3d 699 (5th Cir. 1999). An officer's use of a racial epithet ("boy" and "nigger", both of which the officers denied), does not constitute violation of a subject's 14th Amendment rights to equal protection under the law unless it is accompanied by physical harassment or other constitutionally objectionable conduct. In short: offensive language, taken alone, is not actionable.
Quinn v. Nassau County Police Dept., ___ F. Supp. ___ (1999 WL450863 EDNY 6/28/99). District court affirms $380,000 jury verdict for gay police officer who established 42 U.S.C. § 1983 violation based on a denial of equal protection.
Martinez v. City of Albuquerque, 184 F.3d 1123 (10th Cir. 1999). Plaintiff, Martinez, was caught patronizing a prostitute while in his car. Martinez attempted to flee when officers approached. A brief chase ensued. A few seconds later, Martinez stopped his vehicle, locked the doors, and rolled down the window. With his hands gripping the steering wheel, Martinez claimed he had done nothing wrong. When Martinez refused to exit his vehicle, one of the arresting officers reached in the window to unlock the door. Martinez rolled up the window on the officer's arm. Another officer struck Martinez in the face, unlocked the vehicle and arrested Martinez. The entire incident lasted only two to three minutes. The District court dismissed Martinez's excessive force claim without prejudice pending outcome of plaintiff's state appeal on criminal charges (resisting arrest). The Tenth circuit reversed holding that a judgement in plaintiff's favor in the civil action would not necessarily imply the invalidity of conviction for resisting arrest.
Valdez v. McPheters, 172 F.3d 1220 (10th Cir. 1999). Officers had felony arrest warrant for subject. Mother allegedly refused entry without search warrant, but there was conflicting evidence. Officer's searched twice, but did not find subject inside. Subject had been seen in area several times, had given his mother's address on prior arrests, been seen driving or riding in a vehicle that had been seen parked at mom's, and other officers believe defendant stayed there when in town. Mother later sued officers for violating her Fourth Amendment Rights. 10th Circuit held officers were entitled to enter based on arrest warrant on a reasonable basis for believing subject lived there and was located within. Rejects probable cause standard and states that direct surveillance or actual knowledge is not required. Held officers were entitled to qualified immunity.
West Covina, Calif. v. Perkins, 525 U.S. ___, 119 S.Ct. 678, 142 L.Ed.2d 636 (1999). Fourteenth amendment does not require law enforcement officers who seize property for criminal investigation to provide property owner individualized notice of state law remedies for return of property when information about those remedies is available from published sources, such as state statutes.
Dl Hearings
Huelsman v. Kansas Department of Revenue, 267 Kan. 456, 980 P.2d 1022 (1999). KDR suspended based on refusal. Eight days later, Salina Municipal Court tossed the case finding no probable cause for arrest. Revenue's finding that reasonable grounds existed did not foreclose Salina Municipal Court finding there was no probable cause for the arrest. The Salina prosecutor and KDR were not in privity and the differences in the quality and extensiveness of the proceedings results in an exception to collateral estoppel. Can have reasonable grounds without having probable cause.
Thomas v. Kansas Department of Revenue, 26 Kan.App.2d 132?, 980 P.2d 594? (1999). A conclusory statement by a certifying law enforcement officer on a DC-27 form of reasonable grounds to believe a driver was operating under the influence is sufficient to meet the requirements of K.S.A. 1998 Supp. 8-1002(a)(1).
Ruble v. Kansas Department of Revenue, 26 Kan.App.2d 1, 973 P.2d 213 (1999). Defendant failed a DUI breath test and had his license suspended. District court set aside Ruble's 330-day license restriction because the officer failed to notify Ruble of the restriction period. Kansas Court of Appeals held the officer's failure to notify a suspected drunk driver of the restriction period was irrelevant. Ruble also claimed the evidence of test failure was insufficient because he blew a 0.087, the standard checked out within range at 0.072, and the 0.008 "margin of error" required a showing that his BAC was 0.008 higher than 0.080. Court rejected this argument holding that if the instrument is certified and appears to be working properly, the operator is certified, and the protocol is followed, there is no requirement to overcome any "margin of error."
Driving While Suspended
State v. Patton, 26 Kan.App.2d 591, 992 P.2d 819 (1999). K.S.A. 8-262(a)(1)(C) only prohibits driving while suspended on a "highway." Highway is defined as the "entire width between the boundary lines of every way publicly maintained when any part thereof is open to the use of the public for purposes of vehicular travel." This definition does not include a Wal Mart parking lot which is privately owned but open to use by the public.
State v. Thrash, ___ Kan. ___ (No. 81464 filed 7/9/99). In misdemeanor DWS case, notice mailed to last known address is sufficient. No requirement to send second notice if Dept. of Revenue subsequently receives a change of address.
State v. Bandy, 25 Kan.App.2d 696, 971 P.2d 749 (1998), rev. denied 266 Kan. 1110 (1999). Sequential relationship requirement of State v. Wilson, 6 Kan.App.2d 302 and State v. Osaba, 234 Kan. 443, does not apply to determination of criminal history under the KSGA. All convictions prior to sentencing in the immediate case are considered regardless of whether the offense occurred before or after the offense in the immediate case. In this case, offense was 2/5/95 and conviction was 8/1/96. All convictions subsequent to offense date are considered. (Other convictions were on 3/19/96 for 2/22/95 offense; conviction on 4/8/96 for 3/3/95 offense; conviction on 4/9/96 for 2/26/96 offense).
DUI
State v. Martinez, 268 Kan. 21, 988 P.2d 735 (1999). The district court erred in determining that imposing a strict liability felony penalty for a third conviction for DUI pursuant to K.S.A. 1998 Supp. 8-1567 is unconstitutional.
State v. Bickerstaff, 26 Kan.App.2d 423, 988 P.2d 285 (1999). Driver stopped for speeding. Officer smelled odor of alcoholic beverage. Driver denied drinking. FST and PBT indicated presence of alcohol, but not impairment. Consent to search refused. Officer searched vehicle and found open container, marijuana, methamphetamine and paraphernalia. Trial court suppressed evidence saying odor of alcoholic beverage does not provide PC to search. Court of Appeals reversed, holding that it does.
State v. Slater, 267 Kan. 694, 986 P.2d 1038 (1999). DUI stop based on anonymous tip of suspected 10-46. District court suppressed all evidence. Supreme court reversed, holding RS determined by both content and reliability in addition to threat to public safety as balanced against intrusion into citizen's freedom and privacy. Although anonymous tip is lowest in reliability, quality of information given, subsequently verified by officer prior to stop, justified stop under totality of circumstances.
State v. Davis, 266 Kan. 638, 972 P.2d 1099 (1999). Prosecutor's failure to provide DUI discovery (certification of standard solution and weekly test results of the Intoxilyzer 5000 for two months preceding, month of, and month following breath test) requested by defense counsel and ordered by court resulted in dismissal of complaint with prejudice. Supreme court held documents were relevant and subject to discovery and should have been produced and mailed to defense counsel. Contempt finding was not an abuse of discretion, but dismissal of charges was.
State v. Blair, 26 Kan.App.2d 7, 974 P.2d 121 (1999). Kansas Court of Appeals held that observed erratic driving is not a requirement for conviction of driving under the influence of alcohol. The stop was for reasons other than erratic driving, and the officer testified defendant had an odor of alcohol around her and had some problems with field sobriety tests. This evidence, when coupled with defendant's statements that she had four beers, was drunk, knew she was drunk and would take a blood test to prove it, was sufficient to convict of DUI.
Domestics
State v. Kimberlin, 26 Kan.App.2d 28, 977 P.2d 276 ( 1999). When officer respond to a domestic violence call, consent by victim to entry of one officer also applies to backup officer. Added intrusion is only minimal when compared against officer safety interest. Officers responded to 911 call. Drunk, angry and belligerent male ordered them to leave. Officers left, then came back when they heard defendant yelling at female. He ordered them to leave again, but they eventually arrested him for disorderly conduct. Female came outside and said male tore up a roommate's bedroom. She gave one officer consent to inspect damage. Other followed, and found defendant near some roaches in an ashtray. Officers asked for general consent which was refused. Based on view of roaches, officers got a search warrant and searched house, yielding drugs.
State v. Strange, (Kan.App. No.77,949, unpublished opinion filed 3/5/99). Conviction of aggravated burglary reversed where state failed to prove entry without authority. Both defendant and his girlfriend were on lease. Neither had been evicted, although defendant voluntarily moved out 3 weeks prior to the alleged burglary. See also State v. Harper, 246 Kan. 14, 785 P.2d 1341 (1990)(state failed to prove entry without authority when employee entered business at 2:00 a.m. to steal files. Employer had asked for keys back, but knew defendant retained keys intending to use them to retrieve tools. Employer did not insist on return of keys or otherwise place specific limitations on defendant's access to building).
Employment
United States v. City of Miami, F.O.P. Lodge 20, ___ F.3d ___ (No. 98-4626 11th Cir. 11/17/99). $9 million award for reverse discrimination was excessive because designed to make 35 officers whole when only two positions were at issue, and each Lt. candidate only stood a one in 23 (4%) chance of promotion and Sgt. candidates only stood a one in twelve (8%) chance of promotion. Value of lost promotions was only about $500,000.
Higgins v. New Balance Athletic Shoe, Inc., ___ F.3d ___ (1st Cir. 99-1043 10/22/99). Factory worker had no valid Title VII retaliation claim against former employer when he was allegedly discharged for complaining about harassment he suffered due to being a homosexual. Sexual orientation is not a protected class.
Firearms
F.O.P. v. U.S.A., 173 F.3d 898 (1999), cert. denied, 120 S.Ct. 324. The Lautenberg Amendment to 18 U.S.C. § 922(g) prohibiting possession of a firearm by those convicted or subject to a restraining order for domestic battery is constitutional.
First Amendment
Los Angeles Police Department v. United Reporting Publishing Company, 528 U.S. ___, 120 S.Ct. 483, 145 L.Ed.2d 451 (1999). Court revives a California law limiting access to crime reports, including victim name and address and arrestees, to those using them for "a scholarly, journalistic or governmental purpose." Government has an interest in limiting access to its records for certain purposes, and can decide not to give out arrestee information without violating the First Amendment..
Latino Officers Ass'n, New York, Inc. v. New York City, ___ F.3d ___ (2d Cir. No. 99-7657, filed 11/1799). City violated officer's free speech rights by barring unrecognized Latino Officer's Ass'n members from wearing uniforms during ethnic pride parade, when Hispanic Officers Ass'n could. Court said that celebrating ethnic participation in the police force is a matter of public concern.
Olmer v. Lincoln, Neb., ___ F.3d ___ (No. 98-4112NE, 10/14/99, 8th Cir. 1999). Ordinance prohibiting focused picketing in vicinity of churches during religious services and 30 minutes preceding and following them violates First Amendment Free Speech Clause.
City of Chicago v. Morales, ___ U.S. ___, 119 S.Ct. 1849, 144 L.Ed.2d 67 (1999). A loitering ordinance authorizing the arrest of persons who have disobeyed a police order to move on, given when a police officer has reasonable cause to believe that a group of loiterers contain a member of a criminal street gang, is impermissibly vague in violation of due process guarantees. (Note: Stay tuned for further developments. City council passed a new ordinance in February 2000 designed to fix the vagueness flaws cited by the Supreme Court - ABA Journal, June 2000 at 28.)
Latino Officers Ass'n v. Safir, ___ F.3d ___ (2d Cir. No. 97-7957, filed 3/5/99). Police department rule requiring: (1) officers to prepare written notification indicating name and location of governmental agency or private organization to which the officer is invited or subpoenaed to testify or make a statement, to be submitted within 5 business days before the appearance; and (2) to deliver a summary of the testimony or statement given, including questions and answers, to the Commissioner on the next business day after the appearance, did not violate the officer's First Amendment rights.
Edwards v. City of Santa Barbara, 150 F.3d 1213 (1998), cert. denied ___ U.S. ___ (No. 98-1074, 3/8/99). Ordinance limiting demonstration activities near medical facilities and places of worship was constitutional in part, but was not narrowly tailored as to certain provisions.
FLSA
Alden v. Maine, 144 L.Ed.2d 636 (1999). Congress does not have power under Article I of the United States Constitution to subject nonconsenting states to private suits for damages in state's own courts.
Theisen v. City of Maple Grove, ___ F.Supp. ___ (No. 97-2565 D. Minn. 1/15/99). City required to compensate police canine handlers for time spent at home caring for police dogs. In figuring regular rate for back pay, nondiscretionary bonuses must be included, but discretionary bonuses can be excluded. In this case, longevity pay required by CBA should be included. Also, canine specialist premium pay must be included unless excluded by 29 U.S.C. § 207(e)(5)-(7).
Forfeiture Proceedings
City of Hoisington v. $2,004 in U.S. Currency, ___ Kan.App.2d ___, ___ P.3d ___ (No. 83,662, filed 8/1/2000). Passenger in a car consented to search yielding drugs and paraphernalia and was arrested. She removed a wad of cash from her pocket and started to give it to the driver for her bail, but it was promptly seized. Passenger had no good explanation for the source of the cash. Court held money was found in close proximity to drugs, which creates a rebuttable presumption for forfeiture. Passenger failed to meet her burden to overcome the presumption.
State v. Residential Unit & Real Estate at 930 Winwood #2, Junction City, Kansas, ___ Kan.App.2d ___ (No. 79,348, filed 7/2/99). Language in K.S.A. 60-4113(g) requiring a forfeiture hearing to be held within 60 days after service of the petition is directory rather than mandatory, but failure to conform to the statute can be fatal if a claimant's right to due process is violated by an excessive time period before a hearing.
U.S. v. 3814 Thurman St., Portland Ore., ___ F.3d ___ (9th Cir. No. 97-35054, 1/5/99). Forfeiture of over $200,000 in mortgage loan proceeds fraudulently obtained was grossly excessive considering no crime was charged, if it had been fine for offense was only between $500 and $5000, and victims did not suffer any actual loss. Forfeiture was more than 40 times the maximum possible fine. One judge dissented.
Gangs
City of Chicago v. Morales, ___ U.S. ___, 119 S.Ct. 1849, 144 L.Ed.2d 67 (1999). A loitering ordinance authorizing the arrest of persons who have disobeyed a police order to move on, given when a police officer has reasonable cause to believe that a group of loiterers contain a member of a criminal street gang, is impermissibly vague in violation of due process guarantees.
High Speed Pursuits
Carleton v. Tulsa, Okla., ___ F.3d ___ (10th Cir. 1999), cert. denied, ___ U.S.___ (No. 98-1654). Absent allegation that officer in high-speed chase intended physical harm to persons in car into which chased vehicle crashed, civil rights action fails to state a 14th Amendment Due Process claim. Absent constitutional violation by officers, claims against City must fail.
United States v. Vasquez-Alvarez, 176 F.3d 1294 (10th Cir. 1999) (rejected by, U.S. v. Arizona, 641 F.3d 339 (9th Cir. 2011)), held that the general authority of state and local police to investigate and make arrests for violations of federal immigration laws is not preempted. The case arose when the alien defendant was arrested by a local police officer on the sole basis that he was an undocumented alien. Criminally charged with illegally reentry after deportation 8 U.S.C.A. § 1326 thereafter, the alien defendant sought to suppress his postarrest statements, fingerprints, and identity on the grounds that the underlying arrest by local police was preempted. In sustaining the defendant's conviction, the Tenth Circuit began by asserting that state and local police have the general authority to investigate and make arrests for violations of federal immigration laws. The court then held that this authority is not preempted by a federal statute authorizing state and local law police to arrest and detain an undocumented alien under certain circumstances if the aliens had been deported or left United States because of a felony conviction 8 U.S.C.A. § 1252c. The introductory language of Section 1252c, "[n]otwithstanding any other provision of law, to the extent permitted by relevant State and local law. . .," the court said, cannot reasonably be read as an express preemption of state and local law authorizing police to investigate and make arrests for violations of federal immigration law. The second clause of the introductory language expressly negates any intent to preempt limitations on state or local authority to investigate and make arrests for violations of federal immigration law. The court also noted the absence of express preemption in the legislative history behind Section 1252c. The purpose behind Section 1252c, according to the court, was to displace a perceived federal limitation on the ability of state and local officers to arrest aliens in violation of federal immigration laws. Neither did Section 1252c preempt by implication state law or local laws authorizing law enforcement to make arrests for violations of federal immigration laws, the court held.
Note: In United States v. Arizona, 641 F.3d 339 (9th Cir. 2011), cert. granted, 132 S. Ct. 845, 181 L. Ed. 2d 547 (2011) and aff'd in part, rev'd in part and remanded on other grounds, 2012 WL 2368661 (U.S. 2012), noted that the Tenth Circuit's interpretation of 8 U.S.C.A. § 1252c is not persuasive, as § 1252c was intended to grant authority to state officers to aid in federal immigration enforcement because Congress thought state officers lacked that authority. The Ninth Circuit in Arizona held that the states do not have the inherent authority to enforce the civil provisions of federal immigration law.
Interrogation
People v. Gonzales, ___ Colo. ___ (99SA197, 11/1/99). No interrogation requiring Miranda occurred when murder suspect being transported after a court hearing, said to deputy, "Can I be up front with you?" and deputy responded, "Sure."
California Attorneys for Criminal Justice v. Butts, ___ F.3d ___ (9th Cir. Nos. 97-56499 and 97-56510). The Fifth Amendment prohibits a police officer from deliberately continuing an interrogation after a suspect asks for a lawyer, and officers are not entitled to qualified immunity in a suit pursuant to 42 U.S.C. § 1983 for "questioning outside Miranda.
State v. Williams, 268 Kan. 1, 988 P.2d 722 (1999). A waiver of Miranda rights need not be in writing. Following State v. Alexander, 12 Kan. App. 2d 1, 6, 732 P.2d 814, rev. denied 241 Kan. 839 (1987).
Mitchell v. United States, ___ U.S. ___, 67 U.S.L.W. 4230 (1999). Federal criminal defendant does not waive their Fifth Amendment privilege by pleading guilty. At the plea hearing, after asking for a factual basis, the judge asked defendant if she committed the acts alleged by the prosecution and she said "some of them." At sentencing, the prosecutor called co-conspirators to testify about the quantities of drugs sold. Based on this unrebutted testimony and defendant's refusal to testify at sentencing, judge imposed a 10-year mandatory minimum sentence. U.S. Supreme Court held it was improper to draw adverse inferences from the defendant's refusal to testify at the sentencing hearing.
State v. Welsh, 26 Kan.App.2d 362, 988 P.2d 261 (1999). Statements made to private security officers who are not employed by the State and who are not acting under State directives are not subject to the self-incrimination privilege.
United States v. Williams, ___ F.3d ___ (8th Cir. No. 98-4322, 6/22/99), 68 L.W. No. 3, 1038. Statement indicating location of gun falls within the public safety exception to Miranda where officers serving nighttime no-knock narcotics warrant handcuffed defendant then asked "Is there anything we need to be aware of?"
State v. McCorkendale, 267 Kan. 263, 979 P.2d 1239 (1999). Statements made after Miranda warnings are admissible if they are knowing and voluntary. Factors include: (1) the accused's mental condition; (2) the manner and duration of the interrogation; (3) the ability of the accused on request to communicate with the outside world; (4) the accused's age, intellect and background; and (5) the fairness of the officers conducting the investigation.
State v. Dang, 267 Kan. 198, 978 P.2d 277 (1999). Defendant killed girlfriend and child and dumped them in Osage county ditch. Wrapped in linens from his trailer. Moved to Virginia. Kansas officers went to Virginia to question him. VA officials picked him up on a ruse and brought him to station. No handcuffs were applied and defendant was not told he was under arrest. Interviewed in windowless interrogation room 30-60 minutes before warnings given. Officers were not verbally abusive. Then interrogated for 4-4.5 hours. Defendant twice said "That's it." Requested permission to leave, which was denied. Never asked for an attorney. Court held unwarned statements are presumed coercive, but if state overcomes presumption by showing lack of compulsion and obtains warned, voluntary statements, "fruit of the poisonous tree" principle does not bar admission of post-warning statements.
State v. Esquivel-Hernandez, 266 Kan. 821, 975 P.2d 254 (1999). Although defendant could not read English and was in ICU with self-administered morphine pump, his statements to police were voluntary given short duration of questioning, constant attending by nurses, audio tape of interview, and officer's statements defendant did not seem to be in great deal of pain.
State v. Ronald E. Timley, Sr., 25 Kan.App.2d 779, 975 P.2d 264 (1998). Kansas Court of Appeals upheld the surreptitious videotape recording of statements by an arrested individual in a patrol car. Defendant had no reasonable expectation of privacy in the back seat of a police car, he was not subjected to custodial interrogation requiring Miranda warnings, and there was no reversible error in admitting the evidence over a confrontation clause objection. The court, however, reversed defendant's conviction of felony obstruction under K.S.A. 21-3808, stating there was no evidence the uniformed officers were attempting to serve a "writ, warrant, process or order of a court," and it held that a warrantless felony arrest is not "legal process" as defined by the statute. Curiously, the court never addressed whether defendant, who ran from the officers, obstructed them "in the discharge of any official duty." K.S.A. 21-3808(a).
United States v. Dickerson, 166 F.3d 667 (4th Cir. 1999) rev. granted No. 99-5525. Police officers not required to warn arrestees that they have the right to remain silent. 18 U.S.C. 3501 makes warnings only one element in determining whether confession is voluntary. Federal law supersedes the "judicially created rule" of Miranda. Stay tuned for further developments. Reversed by the U.S. Supreme Court.
Miscellaneous
Gillespie v. City of Indianapolis, ___ F.3d ___ (1997 WL 463577 (7th Cir. 1999)). Officer was terminated based on past misdemeanor domestic violence conviction after Congress adopted prohibition on carrying a firearm in 18 U.S.C. § 922(g)(9). Sued city claiming discharge violated various constitutional rights. Court upheld statute and termination.
State v. Pendleton, 26 Kan. App. 2d 565, 990 P.2d 1241 (No. 82369, filed 10/29/99). An innocent belief that a buyer of a cereal malt beverage is 21 years of age or over does not relieve the seller from criminal liability for the sale of a cereal malt beverage to an underage buyer. To prove a violation of K.S.A. 21-3610a, the State need only show that the defendant willfully sold a cereal malt beverage to an underage buyer; it is irrelevant in such a case what the defendant innocently believed the buyer's age to be.
State v. Seabury, 267 Kan. 431, 981 P.2d 1162 (1999). Kansas Supreme Court reiterates the rule from State v. Hudson, 261 Kan. 535, 931 P.2d 679 (1997) that the severity of an obstruction charge depends on the arresting officer's authority, knowledge and intent. If intending to arrest only for a misdemeanor, the obstruction is a misdemeanor. If intending to arrest for a felony, the obstruction is a felony.
Off-duty Employment
Howard County Police Officers Association, Inc., v. Howard County, 1999 WL 253 (Md. App. April 30, 1999). Officers argued that the County Executive did not have the authority to delegate to the Chief of Police the power to promulgate off-duty employment rule requiring chief's approval. Maryland Court of Appeals rejected the argument finding that by Maryland statute, a law enforcement agency may promulgate reasonable regulations regarding secondary employment.
Privacy
Riley v. St. Louis County of Mo., 153 F.3d 627 (1998), cert. denied ___ U.S. ___ (No. 98-1020, 3/1/99). Police department did not violate mother's constitutional rights by photographing son's body at funeral home and showing pictures at a gang awareness assembly.
Search & Seizure
United States v. Carey, 172 F.3d 1268 (10th Cir. 1999). Police obtained a search warrant for Carey’s computer to search for "names, telephone numbers, ledger receipts, addresses and other documentary evidence pertaining to the sale of controlled substances." The officers searched the computer using key word searches and did not find any records. They then began opening files, including JPG image files. They found child pornography in the JPG files. They then abandoned the search for drug records and opened all the JPG files; they found more child pornography. The Tenth Circuit, limiting their decision to the specific facts of this case, held that the officers exceeded the scope of the search warrant which was only for documentary (not photographic) evidence of drug dealing. As such, the evidence should have been suppressed.
United States v. Jackson, 213 F.3d 1269 (10th Cir. 2000). State and federal officials did not violate the Fourth Amendment or Title I of the Electronic Communication Privacy Act of 1986 (18 U.S.C. §§ 2510-22) by installing silent video cameras on telephone poles which recorded activities outside her home, or by using a "video car" capable of recording audio and video of events occurring outside the residence. Title I does not regulate silent video surveillance, and defendant had no reasonable expectation of privacy in any activity a passerby would easily be able to see. Title I does not regulate audio recordings when one party to the transaction (the wired informant) consents to monitoring & taping of the conversation.
United States v. Holt, 229 F.3d 931 (10th Cir. 2000), vacated on rehearing en banc 264 F.3d 1215 (10th Cir. 2001). Officers established a targeted checkpoint because they believed defendant was transporting illegal drugs. Defendant approached the checkpoint and was not wearing his seat belt. He was pulled over and requested to join a trooper in his patrol car. While the trooper was holding Holt’s driver’s license and writing a warning, he asked Holt if "there was anything in [Holt’s] vehicle [the trooper] should know about such as loaded weapons." Holt said there was loaded pistol behind the passenger seat. When the trooper asked about anything else, Holt said "I know what you are referring to, but I don’t use them anymore." Trooper then asked to search the vehicle, and Holt agreed, yielding a loaded gun, methamphetamine and paraphernalia. A panel of the 10th Circuit initially held that questions unrelated to the purpose of the stop amounted to an illegal detention which was not supported by reasonable suspicion and remanded for hearing on whether consent to search was nevertheless voluntary. Sitting en banc, a 5-4 majority of the full court vacated the panel's opinion and reversed the suppression, remanding for further proceedings. The court reasoned that questions about loaded weapons are justified in the interests of officer safety and, when weighed against Holt's even lower expectation of privacy (Oklahoma law requires permitted weapons carriers to disclose the existence of the weapon upon initial contact with any law enforcement officer), there is minimal intrusion on his Fourth Amendment rights. It would make little sense for Oklahoma society to recognize as reasonable the privacy expectations of those who illegally possess concealed weapons when law-abiding weapons carriers have to disclose the existence of their weapons to law enforcement officers. The case was remanded to answer questions about whether the officers questions unnecessarily lengthened the scope and duration of the stop.
State v. Kimberlin, 267 Kan. 659, 663-64, 984 P.2d 141 (1999). Warrantless seizure of discarded trash, even if within the curtilage, is not unreasonable. Here trash was located 5 to 8 feet from the street on the other side of a ditch, 35 to 40 feet in front of the house. The total distance from the house to the street was estimated to be approximately 50 to 55 feet. The entire area, including the ditch, was mowed by the resident. There is no sidewalk on that side of the street. The trash was sitting in the location customarily used for trash pick-up. There was a city easement extending 17 to 20 feet from the edge of the road back toward the house. The parties stipulated that the trash was sitting within this easement area when officers seized it.
United States v. Hill, ___ F.3d ___ (10th Cir. No. 99-2122, filed 12/21/99). Plain clothes deputy who boarded bus, asked passengers to identify their carry on luggage, and was careful to stand behind the seat of the person he was talking to, and ask for consent before looking in bags, did not coerce those persons on board to consent to search.
United States v. Nolan, ___ F.3d ___ (10th Cir. No. 98-3193, filed 12/22/99). Officers were entitled to good faith exception where they entered residence pursuant to warrant authorizing seizure of documents, electronic equipment and assets relating to drug trafficking. In essence, the warrant affidavit said a CI purchased crack from the defendant 10 different times at public locations during a one year period and, although the CI had never been in defendant's house, he believed there may be crack there because defendant was careful not to sell crack from the residence, and an experienced narc officer believed that drug dealers keep records in their homes. Once inside, the officers saw drugs and paraphernalia. They obtained a second warrant and seized the drugs. Court dodges issue of whether affidavit establishes a nexus between the place to be searched and the items to be seized, which is necessary to establish probable cause. Instead, find officer's reliance upon issuance of warrant was reasonable.
Calbretta v. Floyd, 189 F.3d 808 (9th Cir. 1999). Police officer and social worker not entitled to summary judgment for warrantless entry into home to investigate vague child abuse complaint. When social worker was refused entry, children were easily seen inside the house and did not appear to be abused. Officer's claim that alleged child abuse always constitutes an exigency is rejected.
B.C. v. Plumas Unified School Dist., 193 F3d 1260 (9th Cir. 1999). A police dog sniffing a person is a Fourth Amendment search. Agrees with 5th Circuit (Horton v. Goose Creek Independent School Dist., 690 F.2d 470 (5th Cir. 1982); but disagrees with the 7th Circuit (Doe v. Renfrow, 631 F.2d 91 (7th Cir. 1980).
Howes v. Hitchcock, ___ F.3d ___ (1999 WL 734583 (D.Mass.)(Opinion by District Judge Patti B. Saris)). In a first impression case, court holds officers who entered a house where an underage drinking party was occurring were qualifiedly immune for violating Fourth Amendment rights. Officers could have reasonably believed warrantless entry was justified by exigent circumstances of destruction of evidence or potential threat to life and property posed by a large underage drinking party.
Wilson v. State Board of Educ., ___ F.3d ___ (9th Cir. 1999WL971301, Cal.App. 2 Dist.). Dog sniff of a student at a public high school infringed on student's reasonable expectation of privacy and thus constituted a search. Follows 5th Circuit, declines to follow 7th Circuit. Holds school and law enforcement officers were entitled to qualified immunity because law was not clearly established at the time of the search.
State v. Long, ___ Kan. App.2d ___, 993 P.2d 1237 (1999). While overnight guest in someone else's apartment can object to illegal police entry, Minnesota v. Olson, 495 U.S. 91, 109 L. Ed. 2d 85, 110 S. Ct. 1684 (1990); State v. Jones, 24 Kan. App. 2d 405, 409, 947 P.2d 1030 (1997), there must be some indicia of lawful presence and a subjective expectation of privacy. Here, there was an invitation to stay the night that was not initially accepted, then a break-in. Defendant did not have any personal items in the apartment Therefore, defendant could not complain of illegal entry by officers who responded to rape call and that were given citizen tip that rapist ran towards a certain apartment, and entered upon seeing a damaged apartment door.
State v. Loins, ___ Kan. App.2d ___, 993 P.2d 1231 (1999). Following factors supported issuing an "all persons" search warrant which resulted in the arrest of the defendant: (1) that concerned neighbors reported drug activity at the trailer; (2) that a lot of juveniles visited the trailer; (3) that a least a dozen cars would arrive and leave over the course of an evening; (4) that a lot of parties occurred in which mainly marijuana was consumed; (5) that Loins was known to be at the parties; (6) that Lenny Landrum, the reported resident, had been arrested for possession of marijuana and drug paraphernalia; (7) that Loins was convicted of possession of marijuana; (8) that an anonymous informant reported seeing marijuana in the trailer on numerous occasions; (9) that a Crime-Stopper tip reported marijuana sales at the trailer by Loins and two other individuals and that all three were living at the trailer; (10) that it is common for persons buying drugs to stay only a short time and leave with the drugs on their persons; and (11) that Loins was involved in trading sex for drugs at the trailer. Generally, an "all-persons" search warrant will be upheld when the affidavit includes information that the place to be searched is a private residence, that drug use and distribution occur at the place, and that there was a regular traffic of persons entering to make purchases.
State v. Miskell, ___ La. ___ (La. No. 98-kk-2146, 10/19/99, 66 Crim. L. Rptr. 91). Louisiana Supreme Court held that having burglar bars over the door was a valid factor justifying a no-knock entry when executing a search warrant.
State v. Weas, 26 Kan. App. 2d 598, 992 P.2d 221 (1999), rev. denied 268 Kan. 895 (2000). Probable cause to believe kidnaping, battery and rape occurred, and evidence of those crimes and/or the assailant(s) were in a house justified warrantless entry based on exigent circumstances. Officers did not find assailants, but saw drugs in plain view. They obtained a warrant, then seized the drugs. Initial entry lawful based upon probable cause and exigent circumstances. Alternative ground is independent source, because warrant could have issued for person crimes.
Flippo v. West Virginia, 528 U.S. ___, 120 S.Ct. 7, 145 L.Ed.2d 16 (1999) (per curium). Husband called 911 and told police he and his wife were attacked at their vacation cabin. Police arrived, husband was transported to hospital, wife to morgue, and police processed crime scene for 16 hours without a warrant, finding evidence incriminating husband. Husband moved to suppress warrantless search. Supreme Court held there is no murder scene exception to the Warrant Clause of the Fourth Amendment, reversing the Supreme Court of Appeals of West Virginia, which held that after a homicide crime scene was secured for investigation, a search of "anything and everything found within the crime scene area 'was' within the law." The Supreme Court applied Mincey v. Arizona, 437 US 385 (1978), which flatly rejected a murder scene exception to the Warrant Clause. Held once scene was secure, police should have obtained warrant.
U.S. v. Real Property Located at 15324 County Highway E, No. 99-3190, 2000 U.S. App. LEXIS 15634 (7th Cir. 7/6/00). The 7th Circuit sustained the use of a SEEKIR Thermal Imager with an attached 8 mm video recorder. The Court held thermal imaging is a not search within the meaning of the Fourth Amendment. Homeowners lack a reasonable expectation of privacy in the heat emitted from their homes. Heat emanations are like garbage left at the curbside, or smoke rising from a chimney, or the scent of drugs that dogs can detect in luggage.
United States v. McIver, ___ F.3d ___ (9th Cir. No. 98-30145, 8/6/99). Warrantless placement of a tracking device on a vehicle does not constitute a Fourth Amendment search. Builds on New York v. Class, 475 U.S. 106 (1986)(opening car door to move papers to read VIN not a search); United States v. Rascon-Ortiz, 994 F.2d 749 (10th Cir. 1993)(using flashlight to view undercarriage of car not a search) and United States v. Karo, 468 U.S. 705 (1984)(placement of beeper in can of ether did not constitute a search).
State v. Bickerstaff, 26 Kan.App.2d 423, 988 P.2d 285 (1999). Driver stopped for speeding. Officer smelled odor of alcoholic beverage. Driver denied drinking. FST and PBT indicated presence of alcohol, but not impairment. Consent to search refused. Officer searched vehicle and found open container, marijuana, methamphetamine and paraphernalia. Trial court suppressed evidence saying odor of alcoholic beverage does not provide PC to search. Court of Appeals reversed, holding that it does.
Maryland v. Dyson, 527 U.S. 465, 119 S.Ct. 2013, 144 L.Ed.2d 442 (1999). Officers received a tip from reliable CI that defendant would be driving a rented red Toyota, license No. DDY 787 containing a quantity of cocaine. Officers corroborated the tipe by observing defendant, a known drug dealer, in a red Toyota Corolla with the same license number. They stopped him, searched the car and arrested him.. Maryland held warrantless search of car must be supported by probable cause and exigent circumstances. The United States Supreme Court summarily reversed in a per curium opinion. The automobile exception allows warrantless searches based on probable cause due to the unique exigency of the automobile itself. 527 U.S. at 466-67.
United States v. Ryan, ___ F.Supp. ___ (No. 98-40094-01-RDR, filed 2/12/99, reh. denied 4/19/99). Stop for speeding and officers claimed following factors supported reasonable suspicion: (1) defendant's hesitation when asked for consent to search; (2) defendant's nervousness; and (3) officer's knowledge of defendant's alleged drug activity. Court held factor one is inappropriate to consider in deciding whether reasonable suspicion exists; two of "little significance" and three insufficient by itself to support reasonable suspicion to detain defendant while awaiting a canine.
United States v. Gray, ___ F.Supp. ___ (No. 98-40103-01-RDR, filed 4/14/99). Officers executed arrest warrant for another at defendant's home. Asked woman who answered door for ID. She left door open when she went to get it. Officers walked in without consent (they asked, she did not respond) and discovered baggie of marijuana and paraphernalia. Leaving door open was not consent to enter, and failure to object to entry is but one factor. Officers failed to prove consent or exigent circumstances, so evidence is suppressed.
United States v. Long, 176 F.3d 1304, 1308 (10th Cir. 1999). Affirms denial of motion to suppress where TPD officers retrieved garbage bags from atop a trailer parked near a garage. Trailer was outside curtilage and closer to public alley than to Long's garage, so they were abandoned and officers did not violate any expectation of privacy.
United States v. Olguin-Rivera, 168 F.3d 1203, 1205 (10th Cir. 1999). Troopers stopped vehicle with no tag and arrested the driver for no driver's license. Searched passenger compartment incident to driver's arrest. Opened tailgate and found two bags containing 118 pounds of marijuana. The court held there was no violation of the Fourth Amendment when officers searched cargo area of the Isuzu Rodeo that was covered by retractable cover where search is incident to arrest of driver. The presence of built in cover does not make the area equivalent to an automobile trunk, and when there is no trunk, the entire area is the passenger compartment. Court focuses analysis on parts of the vehicle that can be reached without exiting the vehicle.
Florida v. White, 526 U.S. 559, 119 S.Ct. 1555, 143 L.Ed2d 748 (1999). When officers have probable cause to believe that a vehicle is forfeitable contraband, they do not have to obtain a warrant to seize and search the car. Analogizing to the inherent mobility doctrine first announced in Carroll v. United States, 267 U.S. 132, 149 (1925), the Court said the need to seize readily movable contraband before it is spirited away is "equally weighty when the automobile, as opposed to its contents, is the contraband the police seek to secure."
Wilson v. Layne, 526 U.S. 603, 119 S.Ct. 1692, 143 L.Ed2d 818, (1999); and Hanlon v. Berger, 526 U.S. 808, 119 S.Ct. 1706, 143 L.Ed2d 978, (1999). Allowing a newspaper reporter and photographer or other third parties not involved in warrant execution to accompany federal marshals and county police officers into a home to serve a felony fugitive warrant, or to accompany fish and wildlife officers while searching a 75,000 acre ranch for evidence of poaching, violates the Fourth Amendment to the United States Constitution. Rights were not clearly established in 1992 or 1993, so defendants were entitled to qualified immunity.
State v. Toothman, 267 Kan. 412, 985 P.2d 701 (1999). Extremely nervous individual who appeared to be on drugs and appeared to be in a stolen car provided reasonable suspicion for a Terry stop and incident to the defendant's arrest for expired tag and no driver's license.
State v. Cardenas, 26 Kan.App.2d 177, 980 P.2d 594 (1999). Search warrant which fails to list any items of evidence or contraband to be seized, the warrant is a general search warrant and is fatally defective.
Wyoming v. Houghton, 526 U.S. 295, 119 S.Ct. 1297, 143 L.Ed.2d 408 (1999). If there is probable cause to search a vehicle for drugs, officers can look anywhere in that vehicle where drugs might be concealed, including a passenger's purse.
State v. Rexroat, 266 Kan. 50, 966 P.2d 666 (1999). State has burden to prove consent to search is voluntarily, intelligently and knowingly given. Trier of fact must decide issue in light of the totality of the circumstances, and its decision will not be reversed unless clearly erroneous.
Lauro v. City of New York, ___ F.3d ___ 2000 WL 1035947 (C.A.2 - N.Y.) "Perp walk" consisting of walking a burglary suspect out of station, driving him around the block, and taking him back into station, so that media can film the walk, violates plaintiff's rights under the Fourth Amendment. However, rights were not clearly established so officer is entitled to qualified immunity. Affirming in part & reversing in part ___ F.Supp. ___ (No. 95 Civ. 8908 (AGS), S.D.N.Y) 1999 U.S. Dist. LEXIS 1989 , 1999 WL 101245 (2/25/99).
West Covina v. Perkins, ___ U.S. ___, 119 S.Ct. 678 (1999). United States Supreme Court held the Constitution does not requires a State or its local entities to give detailed and specific instructions or advice to owners who seek return of property lawfully seized but no longer needed for police investigation or criminal prosecution. Due process clause does not require the additional information required by the Ninth Circuit, noting that the aggrieved property owners can discover those procedures on their own by reference to published, generally available state statutes and case law, such as the procedures set forth in K.S.A.§§ 22-2506, 22-2512 (1995 and Supp. 1998).
United States v. Rith, 164 F.3d 1323 (10th Cir.), rev. denied ___ U.S. ___ (1999 WL279818). Circuit set forth the rules on authority for consent to search a home. The defendant's parents believed defendant was involved in gang activity and saw him carrying guns into their home. The parents requested officers to search the house to determine whether the guns were stolen. They gave the officers a house key, but did not accompany them to the home. Defendant, an 18 year old who did not pay rent, initially denied entry and asked for a search warrant, but stated "okay, come in," when officers showed him the house key. Court held that a valid consent given by someone with authority cannot be revoked by a co-occupant's denial of consent, even if the denial is clear and contemporaneous with the search. Court held the state proves authority by showing either (1) mutual use of the property by virtue of joint access, or (2) control for most purposes over it. The court also noted that a presumption of control exists where the co-occupants are parents and children.
Traffic Stops
In Re Huhammad F., N.Y. No. 160, 68 L.W. 1356 (1999). Suspicionless stops of cabs for safety checks violates the Fourth Amendment. Officers were to stop cabs in high-crime areas to ensure the safety of drivers. Officers would hand driver safety pamphlet, observe passengers, often order them out and search under the seats. Officers had discretion on how many cabs to stop, location of stops, and number of stops to make during shift. Court holds reasonableness requirement of Brown v. Texas, 443 U.S. 47 (1979) not met.
State v. Bickerstaff, 26 Kan.App.2d 423, 988 P.2d 285 (1999). Driver stopped for speeding. Officer smelled odor of alcoholic beverage. Driver denied drinking. FST and PBT indicated presence of alcohol, but not impairment. Consent to search refused. Officer searched vehicle and found open container, marijuana, methamphetamine and paraphernalia. Trial court suppressed evidence saying odor of alcoholic beverage does not provide PC to search. Court of Appeals reversed, holding that it does.
State v. Slater, ___ Kan. ___ (No. 81374 7/9/99). DUI stop based on anonymous tip of suspected 10-46. District court suppressed all evidence. Supreme court reversed, holding RS determined by both content and reliability in addition to threat to public safety as balanced against intrusion into citizen's freedom and privacy. Although anonymous tip is lowest in reliability, quality of information given, subsequently verified by officer prior to stop, justified stop under totality of circumstances.
United States v. Magallanes, No. 98-2238 (unpublished opinion filed 4/23/99). Stop for 58 in a 55 m.p.h. zone not illegally pretextual, even though defendant had been previously stopped and first officer radioed in vehicle as a "good check." Officers properly obtained oral consent to search based on fact that while being issued citation for logbook violations, logbook indicated frequent stops and placing himself out of service, inconsistent answers about his recent travels, and nervousness and confusion. Upon discovering a large sum of cash bundled by denomination, officers properly handcuffed for safety and continued search.
Wyoming v. Houghton, ___ U.S. ___ (No. 98-184, 67 L.W. No. 11, 9/29/98 argued week of January 11, 1999). Automobile exception allows warrantless search of passenger's personal belongings in passenger compartment of vehicle stopped for traffic violations when there is PC as to car generally, but not specifically as to passenger or purse.
July 1, 1997 to December 31, 1998
ADA
Griffin v. Steeltek, Inc., ___ F.3d ___ (10th Cir. No. 97-5103 1998). Applicant had right to sue under ADA for illegal questions in interview such as prior workers compensation claims and whether he had any disabilities, despite employers argument there was no showing applicant was disabled or perceived as disabled.
Colwell v. Suffolk County (N.Y.) Police Department, ___ F.3d ___ (No.97-9019, 2nd Cir. 1998). Discharge of police officers who were on light duty longer than 6 months because they could not engage in confrontational situations did not violate the ADA.
Kees v. Wallenstein, ___ F.3d ___ (No.97-35559, 9th Cir. 1998). Discharge of corrections officers permanently assigned to light duty because of inability to have contact with inmates due to medical condition did not violate the ADA. Keeping a worker on light-duty status for too long changes the essential function of the job.
Gorman v. Bartch, 152 F.3d 907 (8th Cir. 1998). Transportation of an arrestee to the police station or jail is a "service" covered by Title II of the ADA. NOTE: This case has been appealed to the United States Supreme Court and is set for argument on 4/23/02. See the Case Watch list for details.
ADMINISTRATIVE SEARCH WARRANTS
Board of County Commissioners of Johnson County v. Grant, 264 Kan. 58, 954 P.2d 695 (1998). Inspections of private residential properties to remove private connections from sanitary sewer system were reasonable dwelling searches under the Fourth Amendment.
ARREST
State v. Mitchell, 265 Kan. 238, 960 P.2d 200 (1998). Traffic stop is more analogous to investigative detention than custodial arrest. Governed by Terry v. Ohio, 392 U.S. 1, 20 L.Ed.2d 889, 88 S.Ct. 1868 (1968) standards. However, when stop exceeds scope and duration of reasonable traffic stop and proceeds into an interrogation about drugs, evidence later recovered must be suppressed.
Ricci v. Village of Arlington Heights, 116 F.3d 288 (7th Cir. 1997), cert. granted, 522 U.S. 1038, cert. dismissed as improvidently granted, 523 U.S. 613, 118 S. Ct. 679, 139 L. Ed. 2d 627 (1998). Seventh Circuit held that a warrantless arrest for a fine-only offense did not violate the Fourth Amendment. The U.S. Supreme Court granted certiorari to address two issues: (1) whether the Fourth Amendment's Reasonableness Clause prohibits warrantless arrests in misdemeanor cases that do not involve a breach of peace, and (2) whether a municipality may require its officers to make custodial arrests for a violation of a fine-only ordinance. Cert. dismissed after court discovered arrest was for violation of a business license ordinance rather than a criminal misdemeanor. [Note: This issue was revisited by the United States Supreme Court in Atwater v. City of Lago Vista, 532 U.S. 318, 121 S.Ct. 1536, 149 L.Ed.2d 549 (2001), which held that a warrantless arrest for a fine-only offense did not violate the Fourth Amendment.]
BREATH TESTS
Campbell v. Kansas Dept. of Revenue, 25 Kan.App.2d 430, 962 P.2d 1150, rev. denied 266 Kan. 1107 (1998). Follows Meehan v. K.D.R., 25 Kan.App.2d 183, 959 P.2d 940 (1998) rev. denied 265 Kan. 885, in holding that Intoxilyzer 5000 is sufficiently reliable that no second test is necessary. Allowing suspension without second test complies with due process provisions.
Meehan v. Kansas Department of Revenue, 25 Kan. App. 2d 183, 959 P.2d 940 (1998) rev. denied 265 Kan. 885. Intoxilyzer 5000 is sufficiently reliable that no second test is necessary. Allowing suspension without second test complies with due process provisions.
Criminal History Record Information
State v. Ruff, 266 Kan. 27, 967 P.2d 742 (1998). Prior arrests for crimes very similar to the crime under investigation are probative of probable cause and can be considered by a court in deciding whether to issue a search warrant, even if no conviction results from prior arrests.
CIVIL & CRIMINAL LIABILITY
Myers v. Oklahoma Count Bd. of County Comm'rs., 151 F.3d 1313 (10th Cir. 1998), the court held a policy allowing deadly force "to protect themselves or others when the deputies have probable cause to believe that they are in danger of death or serious bodily harm and that the use of deadly force is reasonably necessary to protect themselves or others" was constitutional. The case involved a barricaded subject who pointed a .22 rifle at the police. Obviously, the police shot him.
Summar v. Bennett, 157 F.3d 1054 (6th Cir. 1998). Officer who revealed confidential informant's identity was entitled to qualified immunity when CI was assassinated. Duty to protect CI was not clearly established.
Melendez v. Los Angeles, Calif., 63 Cal. App. 4th 1, 73 Cal.Rptr.2d 469 (19__), cert. denied ___ U.S. ___ (67 U.S.L.W. 3331 11/17/98). Off duty police officers moonlighting for ticket sales who engaged in acts of excessive force were not functioning as peace officers where they failed to comply with relevant statutes and obtain relevant approvals from city council. City not liable under 42 U.S.C. § 1983.
Jean v. Collins, ___ F.3d ___ (4th Cir. No. 95-7694 9/17/98)(a 6-5 en banc decision). Police officers absolutely immune in 42 U.S.C.§ 1983 suit for failing to turn over exculpatory evidence to counsel for defendant and prosecutor.
Medeiros v. O'Connell, 150 F.3d 164 (2d Cir. 1998). Troopers entitled to immunity for accidental shooting of bus passenger when trying to apprehend hostage taker on the bus. Court stated: "The heroic and selfless conduct of the troopers in this case is the very opposite of conduct that could be said to shock the conscience. As counsel for Medeiros conceded at oral argument, another person in her place might be moved to thank the people who risked their lives to save her son from an armed madman - rather than sue them for money damages."
Jackson v. City of Kansas City, 263 Kan. 143, 947 P.2d 31 (1997). Individual who had been handcuffed and seated on sidewalk by police officers after they responded to report of domestic disturbance, and whose neck was cut by his girlfriend, with whom he had been fighting, while he was handcuffed, sued city. The Supreme Court, Abbott, J., held that: (1) instruction on city's duty of care was not clearly erroneous; (2) instruction on mitigation of damages was not warranted; (3) plaintiff could recover full amounts of medical bills owed, even though he had paid only small portion of bills; (4) award of $150,000 in damages was not excessive; and (5) officers owed duty to plaintiff to protect him from his girlfriend while he was handcuffed and unable to defend himself.
DL HEARINGS
Madison v. Kansas Department of Revenue, 25 Kan. App. 2d 760, 969 P.2d 269 (1998). Minor errors in a DC-27 form do not require suppression at an administrative hearing. Here, officer certified the 11 items normally required for a failure instead of the 8 items required for a refusal.
Zorn v. Kansas Dept. of Revenue, 24 Kan. App. 2d 749, 953 P.2d 1053 (1998). Although district court's de novo review of DL suspension cases is limited to issues raised at administrative hearing, district court is not confined to the agency record. Court can consider a DC-27 form which was not in evidence at administrative hearing.
DISORDERLY CONDUCT
Cook v. Board of Wyandotte Co. Comm., 966 F. Supp. 1049 (1997). Flipping the bird at a highway patrolman is not a crime pursuant to Lewis v. New Orleans, 415 U.S. 130. Therefore, officer is not entitled to immunity in 42 U.S.C. § 1983 suit for wrongful arrest and prosecution.
Domestics
Key v. Hein, Ebert & Weir, Chtd., 265 Kan. 124, 960 P.2d 746 (1998). Warrantless misdemeanor arrests based on a past offense without articulating one or more of the factors in K.S.A. 22-2401(c) is an illegal arrest.
http://www.kscourts.org/Cases-and-Opinions/opinions/supct/1998/19980529/78389.htm
Driving While Suspended
State v. Thomas, 266 Kan. 265, 970 P.2d 986 (1998). Knowledge of suspended status in a felony prosecution is an essential element of offense. Following State v. Lewis, 263 Kan. 843, 953 P.2d 1016 (1998).
DUI
City of Dodge City v. Hadley, 262 Kan. 234, 936 P.2d 1347 (1997). Officer is sent on a disorderly person call. Before he gets there, someone told him the suspect left in a red truck. The officer approached the red truck. Driver exhibited slurred speech, strong odor, a "wooden expression" and glazed eyes. Officer requested SFSTs. Driver refused saying he was stiff and old. Officer arrested him due to his "obvious intoxication." Driver refused. Two officers gave their opinion that driver was too intoxicated to safely operate a vehicle. Defendant claimed that the officer's opinion was inappropriate comment on defendant's guilt. The Court rejected his contention, holding that a nonexpert witness may testify to his or her opinion provided the judge finds such opinion may be rationally based on the perception of the witness and is helpful to a clearer understanding of the witness' testimony. K.S.A. 60-456(a). There was no abuse of discretion in admitting the officers' testimony.
State v. Todd, 262 Kan. 916, 941 P.2d 1374 (1997). Defendant was served a citation for DUI in Jackson county. The officer served him a separate citation for refusing the PBT. Todd checked the box and mailed in the fine for the PBT violation, then claimed that by doing so, the compulsory joinder rule barred his prosecution for DUI. The district court dismissed the DUI charge. The Kansas Supreme Court reversed, holding there was no identity of the elements between refusing the PBT and DUI.
State v. Bishop, 264 Kan. 717, 957 P.2d 369 (1998). No error in admitting open container and breath test in DUI prosecution even though officer did not provide interpreter. Defendants do not have to understand implied consent advisory as long as officer gives both oral and written advisory pursuant to K.S.A. 8-1001(f)(1); Kim v. Kansas Department of Revenue, 22 Kan. App.2d 319, 916 P.2d 47 (1996).
State v. Briggs, 24 Kan.App.2d 621, 950 P.2d 273 (1997). Although evidence established blood serum test can give a 3-20% higher alcohol content, blood serum test showing 0.155 would still reveal a BAC of 0.124. Blood serum tests is proper provided a qualified expert witness testifies to reliable and accurate nature of the test and its general acceptance by other experts. Also, proper to rely upon prior DUI conviction at sentencing even though it was on appeal.
State v. Beam, ___ Kan.App.2d ___, ___ P.2d ___ (No. 80,813 12/11/98). Hospital personnel's act of requiring separate consent to blood draw in addition to LEO's statement pursuant to K.S.A. 8-1001(c) does not require suppression of blood test result.
State v. Neuman, 266 Kan. 319, 970 P.2d 988 (1998). Critical time when LEO must have knowledge of facts giving rise to reasonable, articulable suspicion of criminal activity is at the time of the actual stop, not when the officer activates his emergency lights. Here, officer had reasonable suspicion of DUI after tip from son, saw driver swerve, then immediately failed to yield to emergency vehicle.
State v. Silva, 25 Kan.App.2d 437, 962 P.2d 1146 (1998). No error for state to introduce Intoxilyzer 5000 test result showing 0.114 taken four and one-half hours after defendant last drove without offering expert testimony on how the delay affected defendant's BAC. Court holds test result admissible as "other competent evidence" as defined by K.S.A. 1997 Supp. 8-1013(f).
Campbell v. Kansas Dept. of Revenue, ___ Kan.App.2d ___, 962 P.2d 1150 (1998). No confirming breath test required to admit breath test result, following Meehan v. Kansas Dept. of Revenue, 25 Kan.App.2d 183, 192-94, 959 P.2d. 940 (1998) rev. denied 265 Kan. 885. Officer who observed Campbell driving 72 in a 55 mph zone at 1:10 a.m., smelled alcohol, observed glazed and bloodshot eyes, and obtained statement that Campbell had a few drinks had probable cause to arrest for DUI.
Williams v. Pennsylvania, Cite unknown, rev. denied ___ U.S. ___ (No. 97-1898). No double jeopardy violation where defendant is convicted of DUI and also has his driver's license suspended.
State v. Huser, 265 Kan. 228, 959 P.2d 908 (1998). DUI is distinct from reckless driving, so a conviction or acquittal of one offense will not bar prosecution for the other.
State v. Larson, 265 Kan. 160, 164, 958 P.2d 1154 (1998). Sentence is limited to that of a B misdemeanor when complaint fails to specify the crime severity level. Clarifying State v. Masterson, 261 Kan. 158, 929 P.2d 127 (1996).
State v. Chastain, 265 Kan. 16, 960 P.2d 756 (1998). HGN is scientific; reaffirms State v. Witte, 251 Kan. 313, 836 P.2d 1110 (1992). Also holds that whether office unreasonably interferes with attempt to obtain independent test depends on facts and circumstances of each case. Telling suspect result of the blood test would be higher than the breath test after a deficient sample not unreasonable interference right to independent test. Person who provides an inadequate sample or refuses and has a medical reason is still entitled to an independent test.
State v. Strand, 261 Kan. 895, 898, 933 P.2d 713 (1997). An Intoxilyzer 5000 instrument need not be reinspected following repairs to maintain its certification.
State v. Muck, 262 Kan. 459, 939 P.2d 896 (1997). Officer's testimony that he is a certified operator is hearsay and is an insufficient foundation for admission of breath test results. The State must produce the original documents of certification (officer's card and instrument certificate) at the relevant time period into evidence. (Approving State v. Rohr, 19 Kan.App.2d 869, 878 P.2d 221 (1994).
EVIDENCE
United States v. Castillo, ___ F.3d ___ (No. 96-2251, 10th Cir. 4/6/98 reprinted in 66 L.W. No. 42 at 1666), Fed.R.Ev. 414, which displaces Fed.R.Ev. 404(b)'s ban on character or propensity evidence in child molestation cases, does not violate the Fifth Amendment's Due Process clause.
U.S. v. Scheffer, 523 U.S. 303, 118 S.Ct. 1261, 140 L.Ed.2d 413 (1998). Defendant has no absolute right to tell jurors that he passed a polygraph test.
EMPLOYMENT
LaChance v. Erickson, 522 U.S. 262, 118 S.Ct. 753 (1998). Unanimous holding: public employees can be disciplined for untruthfulness in statements to investigators looking into their misconduct. In Bryson v. United States, 396 U.S. 64 (1969), we said: "Our legal system provides methods for challenging the Government's right to ask questions–lying is not one of them. A citizen may decline to answer the question, or answer it honestly, but he cannot with impunity knowingly and willfully answer with a falsehood." Id., at 72 (footnote omitted).Shahar v. Bowers, 114 F.3d 1097 (11th Cir. 19__), cert. denied ___ U.S. ___ (No. 97-751 1/12/98). Georgia Attorney General did not violate lesbian's constitutional rights by revoking employment offer based on her marriage to another woman.
FIRST AMENDMENT
Olmer v. City of Lincoln, ___ F.Supp. ___ (1998 WL 774625 D. Neb.) Injunction can issue prohibiting abortion protesters from engaging in focused picketing near a place of worship. Purpose of ordinance was to prevent up-close display of gruesome pictures which might upset children. However, ordinance was not narrowly tailored to achieve purpose because it did not prohibit handing out leaflets with gruesome pictures and unnecessarily banned persons from displaying posters with innocuous messages or those that parishioners might want to see.
Dill v. City of Edmond, Oklahoma, 155 F.3d 1193 (10th Cir. 1998). Reverses summary judgment for defendants in a 42 U.S.C. § 1983 action. Detective refused to write a report falsely stating he discovered incriminating evidence at a crime scene. Superiors transferred him to less desirable patrol position and made him work weekends. Detective wrote letter to the chief stating he was aware of exculpatory evidence that had not been made public. He was transferred back to detective division, but was not given any more homicide assignment. City must prove its interests outweigh Dill's in discussing possible police misconduct. City not entitled to qualified immunity because it should have known it was unconstitutional to transfer Dill for exercising First Amendment rights.
FLSA
Stone v. City of Kiowa, 263 Kan. 502, 950 P.2d 1305 (1997). Police officers were not entitled to overtime compensation nor was there any breach of contract when city failed to pay for "on call" time. On call duties did not prevent officers from using time for personal purposes and restrictions were not so burdensome to make the hours "predominately working," and officers were "rarely burdened" with official duties while on call. There were times when city administrator had to take an accident report because officers did not respond to page.
Moreau v. Harris County, ___ F.3d ___ (No. No 97-20796 5th Cir. 1998). 1985 amendments to the relevant FLSA provision on compensatory time (29 U.S.C.§ 207(o)) do not grant employees the sole right to choose how accrued compensatory time will be used. In the absence of a negotiated agreement to the contrary, the employer may make rules governing the issue and can require employees to keep accrued time below a certain level.
Imada v. City of Hercules, ___ F.3d ___ (9th Cir. No. 97-15405, 3/17/98). Officers are not entitled to pay for travel time to and from training sessions in other cities.
Dade County, Fla. v. Alvarez, 124 F.3d 1380, (11th Cir. 1997), reh'g denied, 135F.3d 147 (11th Cir. 1998), cert. denied 118 S.Ct. 1804 (1998). Police officers required to maintain physical fitness standards for response team positions are not entitled to overtime pay for off-duty physical training hours under FLSA. Training time is not working time when (1) attendance occurs outside of the employee's regular working hours; (2) attendance is voluntary; (3) the course, lecture, or meeting is not directly related to the worker's job; and (4) the employee does not perform any productive work during such attendance.
FREE SPEECH
Harman v. City of New York, ___ F.3d ___ (1998 WL130751). City cannot prohibit agency employees from discussing nonconfidential matters with reporters without permission.
Madsen v. Women's Health Center, 512 U.S. 753, 114 S.Ct. 2516, 129 L.Ed.2d 593 (1994). The Court upheld a 36-feet buffer zone around an abortion clinic into which no protestor could journey but the buffer zone was established by an injunction issued in response to the protesters' repeated violation of a prior injunction prohibiting the blocking of public access to the clinic.
http://www.law.cornell.edu/supct/html/93-880.ZO.html
FORFEITURE PROCEEDINGS
One 1995 Toyota Pickup Truck v. District of Columbia, ___ F.3d ___ (D.C. Cir., No. 96-CV-1494, 10/1/98). Forfeiture of defendant's $15,000 truck for his first conviction of solicitation of prostitution was grossly disproportionate punishment to the crime, which provided for a $300 fine of which only $150 was assessed. Follows excessiveness test of Bajakajain.
United States v. Bajakajian, 524 U.S. 321, 118 S.Ct. 2028, 141 L.Ed.2d 314 (1998). Forfeiture of $357,144 in currency for transporting more than $100,000 out of the United States without reporting in violation of 31 U.S.C. § 5316(a)(1)(A) is a fine within the meaning of the excessive fines clause and is excessive in violation of the Eighth Amendment. Amount is "grossly disproportional" to the gravity of the offense.
Kansas Highway Patrol v. 1985 Chevrolet Astro Van, 24 Kan.App.2d 841, 954 P.2d 718 (1998). Innocent owner of gun and cash confiscated during a car stop sufficiently rebutted presumption in favor of forfeiture under K.S.A. 60-4112(j) by filing claim and submitting affidavit stating he was not involved with illegal activity.
Gang Evidence
State v. Sims, 265 Kan. 166, 960 P.2d 1271 (1998). Admissible where there is sufficient proof that membership or activity is related to the crime charged.
HABITUAL VIOLATOR
State v. Alexander, ___ Kan. App. 2d ___ (No. ______ 2/6/98). District court did not err in granting State's motion in limine prohibiting defendant from presenting compulsion evidence under K.S.A. 21-3209.
State v. Lewis, 263 Kan. 843, 953 P.2d 1016 (1998). Knowledge of habitual violator status is essential element of offense of felony driving while habitual violator. Reversing State v. Lewis, 23 Kan. App. 2d 758, 935 P.2d 1072 (1997).
HIGH SPEED PURSUITS
County of Sacramento v. Lewis, 523 U.S. 833, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998). Officer pursued two youths on a motorcycle at high speeds. After 75 second chase covering 1.3 miles, 16-year old fell off motorcycle and run over by officer's car. Federal district court dismissed, but 9th Circuit reversed, holding that jurors should decide whether officer showed "a reckless disregard" for the lives and safety of the youths when deciding to give chase. The United States Supreme Court unanimously held that a police officer does not violate substantive due process rights of an individual by causing his death through deliberate or reckless indifference to life in a high-speed automobile chase aimed at apprehending a suspected offender. Protection against government arbitrariness is the core of due process, but only the most egregious executive actions can be "arbitrary" in the constitutional sense. The standard of conduct that "shocks the conscience" is a more appropriate standard, but this standard must be applied with full cognizance of the facts at issue. Since the officer in this case had no intent to harm the suspect, in the chase, the officer's conduct does not rise to a level which "shocks the conscience."
Identification
State v. Lawson, 25 Kan.App.2d 138, 959 P.2d 923 (1998). One-person show ups by law enforcement are condemned in the absence of exigent circumstances.
INTERROGATION
State v. Dudley, 264 Kan. 640, 957 P.2d 445 (1998). Unwarned voluntary 30-minute confession in which officer asked no questions followed by two interrogation sessions does not violate defendant's rights.
State v. Donesay, 265 Kan. 60, 959 P.2d 862 (1998). Detective questioned suspect in hospital where he was recovering from self-inflicted gunshot wound. Suspect initialed Miranda consent form, but refused to talk until later. Detective continued asking questions about incident under investigation and suspect's willingness to participate. When suspect did not want to answer, detective clarified and continued with questions. Court held in the absence of unambiguous assertion of right to remain silent detective may ask questions to clarify.
State v. Speed, 265 Kan. 26, 961 P.2d 13 (1998). Factors used to determine whether confession are voluntary include the suspect's mental condition, the manner and duration of the interrogation, the ability of the accused to speak with the outside world, the accused age, intellect and background, and the fairness of the officers in conducting the interrogation.
State v. Heath, 264 Kan. 557, 957 P.2d 449 (1998). Questioning was noncustodial where detectives had suspect voluntarily come to the station for questioning. Focused suspicions of officers are irrelevant if not made known to the defendant.
U.S. v. Sullivan, 138 F.3d 126 (4th Cir. 1998). Brief dialogue between officer & citizen after purpose of traffic stop was completed did not amount to custody requiring Miranda warnings. Defendant remained in his vehicle, officer did not ask questions until after returning license & registration, and the officer did not employ physical or verbal force indicating detention. Officer's repeated questions and comments coaxing a response were prompted solely by the defendant's failure to respond.
United States v. Bailey, 979 F. Supp. 1315 (D. Kan. 1997). Topeka police officers executed a search warrant at 1201 S.W. Western at 5:38 p.m. Upon entering, Officer Voigt found Bailey, U.S. Currency and cocaine base in plain view. Voigt read the search warrant to Bailey, Mirandized him, then questioned him after he said he would talk. Bailey gave several untruthful statements, and Voigt indicated to Bailey he did not believe him. Voigt then explained that due to Bailey's prior felony drug conviction he could be facing prison. Voigt also stated that if Bailey wanted "to have any chance of working some of his charges off" he needed to tell the truth. Bailey then came clean and told police where he got the drugs and what he planned to do with them. Baily filed a motion to suppress the evidence and his statements alleging the statement was coerced and that he was drunk and stoned. Officer Voigt testified that Bailey's mental processes were not noticeably impaired and he was responsive to questions. Bailey claimed he did not say anything and that police simply made it all up. The court found that despite a minor error in relating Bailey's criminal history, nothing in Voigt's actions rendered the confession involuntary. The court said Bailey's "poorly spun tale" of the events was of "dubious quality" and not worthy of belief, and denied the motion to suppress.
Ohio Adult Parole Authority et Al . V. Woodard, 523 U.S. 272, 118 S.Ct. ___, 140 L.Ed.2d 387 (1998). Ohio's clemency proceedings which give an inmate the option of voluntarily participating in an interview as part of the clemency process does not violate his Fifth Amendment rights. That Amendment protects against compelled self-incrimination. See Baxter v. Palmigiano, 425 U.S. 308, 316-318. Even if nothing in the clemency procedure grants applicants immunity for what they might say or makes the interview in any way confidential, and that the Authority will draw adverse inferences from respondent's refusal to answer questions -- his testimony at a voluntary interview would not be "compelled."
In The Matter of B.M.B., 264 Kan. 417, 955 P.2d 1302 (1998). The court held:
"A juvenile under 14 years of age must be given an opportunity to consult with his or her parent, guardian or attorney as to whether he or she will waive his or her rights to an attorney and against self-incrimination. Both the parent and juvenile shall be advised of the juvenile's right to an attorney and to remain silent. Absent such warning and consultation, a statement of confession cannot be used against the juvenile at a subsequent hearing or trial." 264 Kan. at 432-33. Most of this language has now been codified at K.S.A. 38-2333.
State v. Morfitt, 25 Kan. App. 2d 8, 956 P.2d 719, rev. denied 265 Kan.___ (1998). Detectives notified suspect he was going to jail for attempted second-degree murder, aggravated kidnaping, aggravated indecent liberties, and aggravated burglary involving an eight year old girl. Suspect responded "You all are scaring me I think, yeah, I shouldn't . . . say anymore." Detectives asked if he wanted to quit talking and explained what would happen if the report went to the D.A. as matters stood. Also explained to suspect that he did not have to say anything. Suspect said he didn't want to talk, but didn't want to go to jail either, so he agreed to talk. Court held suspect's invocation was equivocal and almost immediately was followed by his expressed desire to keep talking to the detectives. Follows Davis v. United States, 512 U.S. 452, 459, 114 S. Ct. 2350, 129 L. Ed. 2d 362 (1994), and State v. Hickles, 261 Kan. 74, 929 P.2d 141 (1996).
JURIES
Campbell v. Louisiana, ___ F.3d ___, cert. denied (No. 96-1584, 4/21/98). White criminal defendant had standing to raise discrimination against blacks in the selection of grand jurors.
MISCELLANEOUS
State v. Wakole, 265 Kan. 53, 959 P.2d 882 (1998). Indian Nations license plates are valid in Kansas if they are valid in the state where the tribe is located pursuant to the reciprocity statute, K.S.A. 8-138a. Stay tuned for 10th Circuit's ruling in Prairie Band of Potawatomi Indians v. Pierce, 64 F.Supp.2d 1113 (D.Kan. 1999)(10th Cir. No. 99-3324).
The 1994 Driver's Privacy Protection Act may or may not be unconstitutional, depending on which federal circuit you are located in. The Seventh and Tenth Circuits (which includes Kansas) have upheld the act against a 10th Amendment challenge. The Fourth Circuit struck it down. See Oklahoma v. United States, 67 U.S.L.W. 1348 (10th Cir. 1998); Travis v. Reno, ___ F.3d ___ (No. 98-2881, 7th Cir. 1998); Condon v. Reno, 155 F.3d 453 (4th Cir. 1998), cert. granted, ___ U.S. ___ (No. 98-1464 argued November 10, 1999).
Municipal Court - Jurisdiction
City of Junction City v. Cadoret, 263 Kan. 164, 946 P.2d 1356 (1997). Cities may not prosecute third or subsequent DUI offenses in municipal court because state law (K.S.A. 1996 Supp. 8-1567(f) makes such offenses felonies. Pursuant to K.S.A. 22-2601, felonies may only be prosecuted in the district courts. K.S.A. 1996 Supp. 8-1567(m) does not allow cities to omit the severity classification of a crime designated as a felony in a state statute that uniformly applies throughout the state and punish those offenders in municipal court.
MUNICIPAL COURT CONVICTIONS - SENTENCING
State v. Messinger, 25 Kan.App.2d 339, 967 P.2d 1081 (1998). Follows State v. Vega-Fuentes in holding that six prior municipal court convictions were properly aggregated to two person felonies for sentencing guidelines purposes, even though four municipal batteries occurred on the same day (with three different victims).
State v. Vega-Fuentes, 264 Kan. 10, 955 P.2d 1235 (1998). K.S.A. 21-4710(d)(7) and K.S.A. 21-4711(a) allow municipal ordinance violations comparable to A or B misdemeanors to be aggregated to a person felony for criminal history purposes.
OFF-DUTY EMPLOYMENT
Edwards v. City of Goldsboro, 891 F.Supp. 406 (E.D.N.C. 1997). Officer suspended for violating department policy prohibiting secondary employment without chief's permission. Taught off-duty firearms course. Was suspended and brought 1983 action claiming violation of rights. Court held there was no constitutional right to secondary employment.
POLICE CHIEFS - POLITICALLY MOTIVATED DISCRIMINATION
Wagner v. Devine, 122 F.3d 53 (1st Cir. 19__), cert. denied ___ U.S. ___ (139 L.Ed.2d No. 7, C-7, 3/18/98). Police Chief is a policy-making official and has no right to be free from discriminatory treatment by council members based on the Chief's political views. Case involved a chief who asserted First Amendment claim that he was forced to resign as a result of harassment by council members who were political opponents of the mayor who had appointed the chief.
PRIVACY
Kallstrom v. City of Columbus, 136 F.3d 1055 (6th Cir. 1998). Police officers engaged in undercover drug operations have a privacy interest in personal security and bodily integrity which is protected by the Fourteenth amendment. Thus, release of personal information to attorney of violent gang members under Ohio's Public Records Act, which in turn was distributed to gang members, without narrowly tailoring the disclosure to meet the state's (assumed) compelling interest in records disclosure, violated officer's constitutional rights. Officers must be given notice and an opportunity to object when disclosure will be made.
Property
State v. Jimenez, 266 Kan. 59, 966 P.2d 60 (1998). Defendants convicted of felony drug charges sought return of firearms "to their attorney in partial satisfaction of fees." Guns were seized by Topeka Police Department officers during service of a search warrant. Although K.S.A. 21-4206 and K.S.A. 1998 Supp. 22-2512(2)(e) are inapplicable because defendants were not convicted of any of the crimes listed therein, K.S.A. 1998 Supp. 22-2512(2)(g) gave district court discretion to order weapons destroyed.
PROSECUTORIAL IMMUNITY
Kalina v. Fletcher, 522 U.S. 118, 118 S.Ct. 502, 139 L.Ed.2d 471 (1997). County prosecuting attorney is not protected by absolute prosecutorial immunity in 42 U.S.C. § 1983 action for making allegedly false statements of fact in a document summarizing the evidence supporting application for an arrest warrant. See also Imbler v. Fletcher, 118 S.Ct. 502 (1997).
PROSECUTORIAL MISCONDUCT
State v. Donesay, 265 Kan. 60, 959 P.2d 862 (1998). District court erred in allowing testimony of Julie Easter, wife of slain SG County Sheriff's Deputy Kevin Easter, regarding Dep. Easter's relationships. Testimony served only to inflame the passions of the jury
United States v. Singleton, ___ F.3d __ (No. 97-3178 1/8/99)(en banc). Federal prosecutors can offer witnesses promises of leniency in exchange for witness's truthful testimony. Doing so does not violate a federal statute prohibiting "anyone" from offering anything of value in exchange for their testimony.
State v. Gray, 25 Kan.App.2d 83, 958 P.2d 37 (1998). Guilty verdicts of sale of marijuana within 1,000 feet of a school and possession of drug paraphernalia are reversed. During cross, prosecutor asked defendant to exhibit arms, which showed no needle marks. Prosecutor turned from the bench and toward the jury and stated: "Sure saw a lot more on the day we arrested you." Judge admonished jury to disregard, but admonishment came at end of trial. Also, during closing, the prosecutor referred to preliminary testimony not in evidence, expressed his personal opinion of defendant's guilt, tried to define reasonable doubt, questioned how defendant made bail and referred to his own years of experience, and suggested defendant had HIV.
SEARCH & SEIZURE
United States v. Myers, 106 F.3d 936, (10th Cir.), cert. denied, 117 S. Ct. 2446 (1997).
"The use of a ‘flashbang’ device in a house where innocent and unsuspecting children sleep gives us great pause. Certainly, we could not countenance the use of such a device as a routine matter. However, we also recognize that we must review the agents' actions from the perspective of reasonable agents on the scene, who are legitimately concerned with not only doing their job but with their own safety. Although it might seem that the [Kansas Bureau of Investigation]'s actions in this case come dangerously close to a Fourth Amendment violation, we cannot say that their actions were objectively unreasonable given the district court's factual findings. The district court found that the agents knew that Mr. Myers had a history of illegal drug trafficking, and had spent time in federal prison for a firebombing incident, although they were unsuccessful in learning of the details of the incident. The district court obviously credited police testimony that Mr. Myers's lengthy pattern of criminal activity - beginning with the fire bombing in 1971 and continuing until the cocaine conviction in 1988 - made them apprehensive."
United States v. McRae, 153 F.3d 708 (6th Cir. 1998). Defendant convicted of drug and weapons possession had no legitimate expectation of privacy in a vacant house where he resided for a week but neither leased nor owned.
State v. Rice, 264 Kan. 232, 955 P.2d 1258 (1998). Duty to investigate anonymous call complaining of loud noise and possible marijuana use does not justify detention of all visitors upon entry into an apartment. Visitor's consent to search person was coerced by finding of marijuana inside apartment on window sill.
State v. Jones, 24 Kan.App.2d 405, 947 P.2d 1030 (1997). Emergency doctrine justified officers' warrantless entry and search of a residence to look for a missing subject whose parents were concerned about him. Instead, the officers found the defendant and his drugs and drug paraphernalia therein.
State v. Reason, 263 Kan. 405 (1997). Officer approached BMW with New Mexico temporary tags and both doors open that was in a park in Wichita. Defendant and a passenger were asleep in car. Defendant consented to search of car, but later said it was without consent when cops found crack pipe, large bag of marijuana under back seat, two more in trunk, and cigarette box filled with cocaine. Court said initial contact was voluntary, Reason was advised he was free to go, but chose to stay and talk to officers. Consent that came 20 minutes later during investigatory detention was valid.
State v. Cowdin, 25 Kan.App.2d 176, 959 P.2d 929 (1998). Officers responded to a domestic and saw possibly stolen items. Called suspected thief's wife in and she gave information about stolen items and drugs. Officers prepared affidavit for search warrant, but failed to disclose wife's criminal history which included false reports of rape, or rumors about her affair with an officer. Court of Appeals held affidavit contained sufficient factual information to constitute probable cause. Although affidavit should have disclosed wife's criminal history, omission was immaterial to probable cause based on the detailed facts the affidavit contained.
United States v. Rumph, ___ F.3d ___ (6th Cir. No. 97-3135 (1998). Officers conducting zero tolerance activity in high crime area saw large group of people in front of Rumph's house. Rumph was a known aggravated murder. When police drove by they saw Rumph walk quickly away and bend down and put something behind wheel of car in driveway. Police stopped Rumph and were concerned about his clenched left fist. They searched him and found drugs in his hand. Also found drugs under car in driveway. Search was reasonable. Police properly concerned for their safety to open his hand, and drugs under car were located a short distance from public sidewalk and visible from sidewalk. No legitimate expectation of privacy to items in driveway.
State v. Ruff, 266 Kan. 27, 967 P.2d 742 (1998). Prior arrests for crimes very similar to the crime under investigation are probative of probable cause and can be considered by a court in deciding whether to issue a search warrant, even if no conviction resulted from prior arrests.
Minnesota v. Carter, 525 U.S. 83, 119 S.Ct. 469, 142 L.Ed.2d 373 (1998). Commercial guests in someone else's apartment cannot claim a legitimate expectation of privacy in the premises because of the purely commercial nature of the transaction, the relatively short period of time they were on the premises and the lack of any previous connection between the guests and the tenant. Because the guests could not claim a legitimate subjective expectation of privacy officer's act of peering into a ground floor apartment window, even if a "search," did not violate the guests' Fourth Amendment rights.
Knowles v. Iowa, 525 U.S. 113, 119 S.Ct. 484, 142 L.Ed.2d 492 (1998). Court unanimously struck down an Iowa statute allowing search of persons and vehicles "incident to citation" for minor offenses such as speeding.
United States v. Washington, ___ F.3d ___ (11th Cir. 1998 No. 97-2146 8/29/98). Federal agents who boarded bus, showed identification, and proceeded to question passengers used coercive tactics to obtain consent to search the defendant's person, a search that yielded $3500 worth of powder cocaine. Although police do not always have a duty to advise persons of the right to refuse consent, when a show of authority such as this leads to the search it is doubtful a passenger would think he or she had the choice to ignore the police presence. [Note: May no longer be good law. See United States v. Drayton, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 01-631, 6/17/2002).]
United States v. Hunnicutt, 135 F.3d 1345 (10th Cir. 1998). Detaining driver after a weaving stop and inquiring about guns and drugs was not unreasonable under the circumstances where driver had a suspended license, had no proof that he owned the automobile, and no proof he was otherwise authorized to operate it. Further detention for 15 minutes while awaiting a drug dog was not unreasonable either where person driver claimed to have purchased vehicle from was not the registered owner, driver failed to promptly pull over leading officer to believe passengers may have been hiding objects, and passengers made furtive gestures after the stop. Driver was validly under arrest at that point and/or the detention was supported by reasonable suspicion.
Pennsylvania Board of Probation and Parole v. Scott, 524 U.S. 357 (1998). Exclusionary rule does not apply to parole revocation hearings. Unlawfully seized evidence admissible in such proceedings. Decision below 698 A.2d 32.
United States v. Nicholson, ___ F.3d ___ (10th Cir. No. 97-6114, filed May 5, 1998). Suspicionless police sweep of a bus in interstate travel consisting of detectives removal of luggage from overhead rack (and luggage hold) and manipulation of the bag (prior to sniffing odor of drugs) constitutes an unreasonable search and seizure. Court notes a sniff may have made the case turn out different.
United States v. Winningham, ___ F.3d ___ (10th Cir. 1998). Detaining van's occupants for six minutes to await a drug sniffing dog was unreasonable seizure when officer searched van's interior and found no undocumented aliens nor reason to suspect presence of narcotics. Consent given for search was involuntary.
State v. Wonders, 263 Kan. 582, 952 P.2d 1351 (1998). Officers can do a "Terry" search of a suspect's pockets if there is reasonable or probable cause to believe the nature of the items located therein (usually drugs) is incriminating and this incriminating nature is immediately apparent to the searching officer. Court will consider the totality of the circumstances, including the officer's credibility, training, education and experience. Adopts Fourth Amendment interpretation set forth in Minnesota v. Dickerson, 508 U.S. 366, 124 L. Ed. 2d 334, 113 S. Ct. 2130 (1993), and refuses to construe Section 15 of the Kansas Bill of Rights differently.
State v. Hardyway, 264 Kan. 451, 958 P.2d 618 (1998). Voluntariness of consent to search car after a traffic stop will not be reversed on appeal unless clearly erroneous. SCAT officers stopped car after passenger visited to known drug house and driver committed traffic violations. Driver and passenger were informed of violations, then passenger was asked for consent search of person which yielded drugs. Supreme Court held consent valid based on totality of the circumstances. Officer's conduct must be viewed with "common sense" considering "ordinary human experience." Policy is to prevent unrealistic second guessing of police officer's decisions and defer to trained officer's ability to distinguish between innocent and suspicious activity.
United States v. Ramirez, 523 U.S. ___, 140 L.Ed.2d 191, 118 S.Ct. ___ (1998), reversing 91 F.3d 1297. The Fourth Amendment does not hold officers to a higher standard when a "no-knock" entry results in the destruction of property. Where officers had probable cause to believe an armed, dangerous escaped prisoner was present and obtained a no knock warrant to search, breaking a single window in respondent's garage and pointing a gun through the opening did not violate the Fourth Amendment and 18 U.S.C. § 3109.
SEXUAL HARASSMENT
Burlington Industries v. Ellerth, Inc, 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998) & Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998). Employer may be liable for quid pro quo sexual harassment the same as hostile work environment harassment, even if they didn't know about the conduct. Reasonable steps to prevent harassment is an affirmative defense.
Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 118 S.Ct. 998, 140 L.Ed.2d 201, (1998). Same-sex sexual harassment is actionable as sex discrimination under Title VII of Civil Rights Act of 1964 (42 U.S.C. § 2000e-2(a)(1)).
TRAFFIC STOPS
State v. Campbell, 24 Kan.App.2d 553, 948 P.2d 684, rev. denied 263 Kan. ___ (1997). Officer's knowledge, gained through official channels (other officer's knowledge of suspended driver's license a few days before) is probable cause to stop a vehicle. Court applies collective knowledge doctrine.
State v. Neuman, 266 Kan. 319, 970 P.2d 988 (No. 79,701 12/11/98). Critical time when LEO must have knowledge of facts giving rise to reasonable, articulable suspicion of criminal activity is at the time of the actual stop, not when the officer activates his emergency lights. Here, officer had reasonable suspicion of DUI after tip from son, saw driver swerve, then immediately failed to yield to emergency vehicle.
United States v. Salzano, 149 F.3d 1238 (10th Cir. 1998). Continued warrantless detention of motor home after termination of traffic stop was not supported by reasonable suspicion.
State v. Mitchell, 265 Kan. 238, 960 P.2d 200 (1998). Traffic stop is more analogous to investigative detention than custodial arrest. Governed by Terry v. Ohio, 392 U.S. 1, 20 L.Ed.2d 889, 88 S.Ct. 1868 (1968) standards. However, when stop exceeds scope and duration of reasonable traffic stop and proceeds into an interrogation about drugs, evidence later recovered must be suppressed.
State v. DeMarco, 263 Kan. 727, 952 P.2d 1256 (1998). Allegedly pretextual stop is valid because defendant failed to signal, regardless of officer's motive. Whren v. United States, 517 U.S. 806, 813 (1996). However, stop exceeded reasonable duration when radio indicated no hits, defendant repeatedly denied consent to search, but was detained over 20 minutes while waiting for a canine unit. Nervousness alone, along with inconsistent travel plans given by two occupants, do not rise to the level of reasonable suspicion.
TORTS
Fettke v. City of Wichita, 264 Kan. 629, 957 P.2d 409 (1998). City immune from damages under K.S.A. 75-6104(d) for release of police officer's name, in violation of department policy, who was involved in a shooting.
Jackson v. City of Kansas City, 263 Kan. 143, 947 P.2d 31 (1997). Individual who had been handcuffed and seated on sidewalk by police officers after they responded to report of domestic disturbance, and whose neck was cut by his girlfriend, with whom he had been fighting, while he was handcuffed, sued city. The Wyandotte District Court, John J. Bukaty, Jr., J., entered judgment on jury verdict awarding $158,500 to plaintiff, and city appealed. The Supreme Court, Abbott, J., held that: (1) instruction on city's duty of care was not clearly erroneous; (2) instruction on mitigation of damages was not warranted; (3) plaintiff could recover full amounts of medical bills owed, even though he had paid only small portion of bills; (4) award of $150,000 in damages was not excessive; and (5) officers owed duty to plaintiff to protect him from his girlfriend while he was handcuffed and unable to defend himself.
Victim's Rights
State v. Parks, 265 Kan. 644, 648, 962 P.2d 486 (1998). Neither Art. 15, § 15 of the Kansas Constitution, nor K.S.A. 74-7333 et seq. express a conscience policy decision that only crime victims or members of the crime victim's family can address the court at sentencing.
Workers' Compensation
Cooper v. Dayton, 120 Ohio App.3d 34, 696 N.E.2d 640, cert. denied ___ U.S. ___ (1997). City responsible for workers' compensation payments due an off-duty officer working plain clothes security when injured attempting to make a shoplifting arrest, even though officer was working for someone else, the employment was not approved by the department, and extra-duty employees are required to carry insurance but claimant did not. Officer showed his city issued badge and was outside his private loss-prevention role in making arrest, and city benefitted from attempted arrest.
Use of Force
Synder v. Trepangnier, 141 F.3d 791 (5th Cir. 1998). Jury finding of qualified immunity affirmed even though jury found officer used excessive force. Officer shot fleeing, apparently unarmed suspect in the back. The court indicated that jury was apparently influenced by fact the gun was never found, even though it was reasonable for the officer to conclude the suspect was armed.
Revised February 15, 2017
John J. Knoll