January 1, 2012 through December 31, 2012 (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/
Smith v. Cain, 556 U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (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.
City of Wichita v. Molitor, ___ Kan.App.2d ___, ___ P.3d ____ (No. 104940, filed 01/13/12). Officers saw Molitor come out of a bar about 2300 hours. The 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.
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.
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. 201), 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)). 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. 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.
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, ___ Kan.App.2d ___, ___ P.3d ____ (No. 103762, filed 07/08/11). 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, ___ Kan.App.2d ___, ___ P.3d ____ (No. 103028, filed 02/11/11). 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, ___ Kan.App.2d ___, ___ P.3d ____ (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. 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, ___ Kan.App.2d ___, ___ P.3d ____ (No. 102720, filed 05/13/11, pet. for rev. filed 5/31/11). 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).
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, ___ Kan.App.2d ___, ___ P.3d ____ (No. 102297, filed 02/11/11, pet. for review filed 3/14/11). 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.
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, ___ Kan.App.2d ___, ___ P.3d ____ (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. 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). 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.
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.
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, ___ F.3d ___ (10th Cir. No. 08-2254, filed 08/17/10). 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. Additonally, 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.
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 ___, 222 P.3d 564 (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, ___ Kan.App.2d ___, ___ P.3d ____ (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.
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 05/28/1010). 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, ___ Kan. ___, ___ P.3d ___ (No. 96563, filed 05/06/10). Affirms 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. ___ (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). QUESTIONS PRESENTED: Whether 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. The Supreme Court's ruling in the D.C. case, District of Columbia v. Heller, was portrayed as remarkable because it announced for the first time that Second Amendment gun rights are individual rights (rather than rights only associated with militias protecting against tyranny from the federal government). The Supreme Court found D.C.'s ban on handguns to violate individuals' Second Amendment rights. However, the case applied only to the District of Columbia and not to any states or cities outside D.C. All eyes will be watching to see what the Supreme Court does. It could either simply decide whether or not individual Second Amendment rights apply to residents of each state, or it could go further and detail what types of gun restrictions will be allowed going forward. As held in the D.C. case, individuals have Second Amendment rights, but some gun restrictions may satisfy constitutional requirements. Many (including lower courts) hope that the Supreme Court offers specific clarification as to which types of gun restrictions will pass muster and which won't. Other cities, including New York, face similar challenges to their gun laws.
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.
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 siglent and 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, ___ Kan.App.2d ___, ___ P.3d ____ (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 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."
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). 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."
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. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (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, ___ Kan.App.2d ___, ___ P.3d ____ (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. __, 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
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. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 07-1529, filed 05/26/09). 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. 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