2021 Case Update List

January 1, 2021 through December 31, 2021 (or thereabouts)

Quick Links to prior year lists.

Full text of United States Supreme Court decisions.

Full text of 10th Circuit decisions.

Full text of Kansas Appellate decisions.


1st Amendment

Frasier v. Denver Police Officers, ___ F.3d ___ (10th Cir. No. 19-1015 ,filed 03/29/2021). After Plaintiff-Appellee Levi Frasier video-recorded Denver police officers using force while arresting an uncooperative suspect in public, one of the officers followed Mr. Frasier to his car and asked him to provide a statement on what he had seen and to turn over his video of the arrest. Mr. Frasier at first denied having filmed the arrest but ultimately showed the officer the tablet computer on which he had video-recorded it. He did so after other members of the Denver Police Department surrounded him and allegedly pressured him to comply with their demand to turn over the video. Fraiser later sued the officers for violating his First Amendment rights. The district court denied the officers qualified immunity. The 10th Circuit reversed. Judicial precedent did not clearly establish in August 2014 Mr. Frasier’s alleged First Amendment right to record them performing their official duties in public spaces.

4th Amendment

Lange v. California, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 20-18, 06/23/21). Lange, a California man sought to suppress evidence of alcohol on his breath that led an officer to charge him with driving under the influence. The officer noticed the smell while in Lange’s garage after following him home. The officer first noticed Lange because he was playing loud music and occasionally honking his horn while driving his station wagon. In a case involving a traffic violation that carried no possibility of jail time, the Supreme Court said a warrantless entry for such a minor offense “should rarely be sanctioned.” The officer who followed Lange home did not activate his siren or immediately turn on his overheard lights. When Lange opened his garage door, the officer turned on his overhead lights. Instead of pulling over, Lange drove into his garage, and the officer followed him on foot. As the garage door was going down, the officer stuck his foot under the sensor to open it back up. The United States Supreme Court said: "The question presented here is whether the pursuit of a fleeing misdemeanor suspect always—or more legally put, categorically—qualifies as an exigent circumstance. We hold it does not. A great many misdemeanor pursuits involve exigencies allowing warrantless entry. But whether a given one does so turns on the particular facts of the case." So the bottom line - flight from a suspected misdemeanor subject might allow entry based on the exigent circumstances of hot pursuit.

United States v. Cooley, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 19-1414, filed 06/01/2021). A tribal police officer has authority to detain temporarily and to search a non-Indian traveling on a public right-of-way running through a reservation for potential violations of state or federal law.

Caniglia v. Strom, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 20-157, filed 05/17/21). A police search of a gun owner’s home while he was in the hospital for a suicide evaluation was not justified under an exception to the Fourth Amendment. The “community caretaker” exception to the Fourth Amendment recognized in , Cady v. Dombrowski, 413 U. S. 433, does not permit such a search. Edward Caniglia retrieved an unloaded gun during an argument with his wife, laid it on the table and said, “Why don’t you just shoot me and get me out of my misery.” Caniglia’s wife ended up spending the night at a motel. When she called her husband the next day, the wife was unable to reach him. She called police in Cranston, Rhode Island, for a wellness check. Caniglia told police that he would never die by suicide, although he said he told his wife to shoot him because he “couldn’t take it anymore.” Caniglia agreed to go to the hospital, where he was evaluated and discharged the same day. Caniglia claimed he only agreed to such after respondents allegedly promised not to confiscate his firearms. Once the ambulance had taken petitioner away, however, respondents seized the weapons. Police refused to return the guns until Caniglia sued for alleged constitutional violations under Section 1983 of the Civil Rights Act. The 1st U.S. Circuit Court of Appeals at Boston had ruled against Caniglia. The Supreme Court reversed. What is reasonable for vehicles is different from what is reasonable for homes.

United States v. Guillen, ___ F.3d ___ (10th Cir. No. 20-2004, filed 04/27/21); 2021 U.S. App. LEXIS 12468 (10th Cir. N.M. Apr. 27, 2021). Officers responded to a call from a young woman who found an improvised explosive device under her bed. They went to the home of Guillen, her 18-year old exboyfriend, who the woman named as someone who might want to hurt her. Officers sought permission to enter. Guillen initially refused, then relented. After short conversations with Guillen and his brother, their dad arrived home and gave officers consent to search the residence. They found items consistent with the IED, and Guillen eventually confessed to making it. He also waived his Miranda rights and explained how and why he made it. The government charged Guillen with possession of an unregistered destructive device and attempting to destroy a building by means fire or an explosive. Guillen filed a motion to suppress his self-incriminating statements and the physical evidence obtained from the search of his home. Guillen argued that the agents violated his Fourth Amendment rights by entering his house and searching his bedroom without a warrant and without his consent. He also claimed that the agents violated his Fifth Amendment rights by questioning him without first providing Miranda warnings. The Tenth Circuit held Guillen voluntarily consented to the agents’ entry into his home and voluntarily waived his Miranda rights. Consent to enter was implied when Guillen stepped back from the door. And Guillen's father had apparent authority to give consent to search the entire house.

State v. Gilliland, ___ Kan.App.2d ___ (No. 122479, filed 05/14/2021). Atchison county deputies saw Gilliland in the driver's seat of a parked vehicle. They verified his revoked status with dispatch, then stopped him when he drove away. They found methamphetamine in his pocket after a search. Gilliland appealed, claiming the officer lacked probable cause to arrest him because his license was only restricted, not suspended, so the district court erred by denying his motion to suppress evidence found during his search incident to arrest. Gilliland also claims that the district court erred by requiring drug tests as a condition of his pretrial bond. The Court of Appeals disagreed. They said the dispatcher made a mistake of fact the officer relied upon in good faith when deciding to arrest Gilliland. The good-faith exception applies when an officer relies upon legal authority such as warrants, statutes or caselaw, and apparently a dispatcher's error in reading a DMV screen. See Herring v. United States, 555 U.S. 135, 142, 129 S. Ct. 695, 172 L. Ed. 2d 496 (2009); State v. Ellis, 311 Kan. 925, 933-34, 469 P.3d 65 (2020).

State v. Arrizabalaga, ___ Kan. ___ (No. 120209, filed 04/30/2021), reversing 57 Kan. App. 2d 79, 447 P.3d 391 (2019). A trooper stopped a car on I-70 for following too closely. The driver said he was enroute to St. Louis to visit friends and family, but the rental agreement indicated the car was picked up in Denver and was due in Tallahassee Florida four days later. There were cardboard boxes and a suitcase in the back seat and the odor of air fresheners coming from the car. The trooper issued a warning ticket, then asked for consent to continue the interaction and got it. Eventually the driver consented to a search, but then withdrew consent before the search started. The trooper called for a canine, which arrived 24 minutes later. The dog indicated drugs were in the car. The trooper found 111 pounds of marijuana in the vehicle. Arrizabalaga alleged there was no reasonable suspicion to stop the car or continue the detention. The district court eventually granted a motion to suppress, holding the 24-minute wait for the drug dog was excessive. The Court of Appeals affirmed. The Supreme Court reversed. It said the Trooper detained Arrizabalaga and his passenger "for no longer than was necessary to get a drug dog to the scene to quickly confirm or dispel his reasonable suspicions." In determining whether a roadside detention is too long to be justified as an investigative stop, a reviewing court will examine whether law enforcement diligently pursued means of investigation that were likely to confirm or dispel their suspicions quickly. The acceptable duration of any traffic stop is determined by the totality of the circumstances. There is no specific length or passage of time that renders a traffic stop unlawful.

State v. Scheuerman, ___ Kan.App.2d ___ (No. 122253, filed 04/16/2021). Scheureman was a passenger in a vehicle that Barton Couty deputies stopped because they knew Sheureman had a warrant. Officers ordered the driver, Gwen Finnigan—Scheuerman's girlfriend—out of the vehicle. As officers approached the vehicle, they noticed Scheuerman holding a gun to his temple. In accordance with the Sheriff's Office policy, Finnigan was taken to the county jail because Scheuerman had a gun. Following a stand-off lasting over an hour, Scheuerman finally put the gun down, got out of the car, and surrendered to the officers. While being placed in Paden's patrol vehicle, Scheuerman told an officer that any "dope" in the car belonged to him, not Finnigan. During the stand-off, Finnigan remained detained at the jail until the situation was resolved. Officers searched the car and found evidence to charge Scheuerman with possession of methamphetamine with intent to distribute at least 3.5 grams but less than 100 grams, criminal possession of a firearm, interference with law enforcement, possession of drug paraphernalia, and no drug tax stamp. Scheuerman sought to suppress the evidence obtained from the search of the car, alleging the officers lacked probable cause to stop the car initially or to search it. Following an evidentiary hearing, the district court denied the motion. Scheuerman alleged the inventory search was illegal because the police did not have a reason to impound the car; instead, they should have asked Finnigan what she wanted done with the car. The Court of Appeals disagreed. Scheuerman does not dispute he was not the car's owner. Although he gave Finnigan the money to buy the car, the car was registered in her name. Because Scheuerman lacks any ownership or possessory interest in the car, he lacks the standing to challenge the search of the car.

State v. Cash, ___ Kan. ___ (No. 121467, filed 04/02/2021). A Lenexa officer stopped Cash's vehicle believing it did not have a current registration decal. She ran the plate and the dispatcher advised the tag came back to a a Chevrolet Venture, which was the correct make and model of the van, but the officer mistakenly heard "Chevrolet Avenger," which led her to believe that the license plate did not belong to the van. She stopped the van. Inside the van she spied a partially opened flat safe. Hanging out of the safe was a plastic baggie and a Crown Royal bag, which the officer suspected contained drug paraphernalia. She asked Cash to open the safe, and Cash complied. As he opened the safe, the officer observed orange hypodermic needle caps inside the plastic baggie. The officer testified that she asked Cash to leave the safe door open, but he slammed the door shut and exclaimed, "'I think there's a pipe in there.'" Defendant alleged the search was illegal. He argues the arresting officer lacked the reasonable suspicion necessary to extend the traffic stop to ask questions about the a plastic baggie and the Crown Royal bag. The Supreme Court disagreed, and found the totality of the circumstances gave rise to a particularized and objective basis for suspecting that Cash was engaged in criminal activity. Importantly, the officer testified that when she previously came across Crown Royal bags, she "more often than not" found drug paraphernalia in them and had seen this "[m]ultiple times" before.

Torres v. Madrid, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 19-292, filed 03/25/21), reversing Brooks v. Gaenzle, 614 F. 3d 1213, 1223 (10th Cir. 2010). Officers Janice Madrid and Richard Williamson temporarily paralyzed Roxanne Torres’s arm after striking it with two bullets (they fired 13 rounds) as Torres drove either away from them or towards them, depending on who you believe. Torres argues that based on the common law meaning of the Fourth Amendment and on the Supreme Court’s Fourth Amendment precedents, a person is seized where the officer intentionally applies physical force. Torres contends that although she drove over an hour away from the scene of where she was shot and was not captured until the next day, the officers’ bullets striking her arm constituted a Fourth Amendment seizure. Officers Madrid and Williamson counter that a Fourth Amendment physical-force seizure requires more. The officers maintain that to successfully complete a Fourth Amendment seizure, they would have had to intentionally acquire physical control, which did not occur because Torres fled from the scene. Suprisingly, the Supreme Court agreed with Torres, distinguishing California v. Hodari D., 499 U. S. 621 (1991)(custody attaches when suspect is apprehended, not when he flees), and held the application of physical force to the body of a person with intent to restrain is a seizure even if the person does not submit and is not subdued. It left open the questions regarding the reasonableness of the seizure, the damages caused by the seizure, and the officers’ entitlement to qualified immunity. Gorsuch, Thomas and Alito dissented. Gorsuch points out the paradox created by the majority:

 

The majority holds that a criminal suspect can be simultaneously seized and roaming at large. On the majority’s account, a Fourth Amendment “seizure” takes place whenever an officer “merely touches” a suspect. It’s a seizure even if the suspect refuses to stop, evades capture, and rides off into the sunset never to be seen again. That view is as mistaken as it is novel.


United States v. Mora, ___ F.3d ___ (10th Cir. No. 19-2097, ,filed 02/24/2021). New Mexico Officers responded to a 911 call reporting that dozens of people exited the back of a tractor trailer behind a supermarket. When officers arrived at the scene a few minutes later, the tractor trailer was gone. But officers found fourteen people lacking identification, some of whom admitted that a driver smuggled them across the border in the back of a tractor trailer. Defendant Mora was identified as the driver and officers met him at his home. They arrested Defendant outside his home and then did a "protective sweep," of the residence. They did not find any people therein, but found a gun safe and ammunition and Defendant was a convicted felon. They obtained a warrant based on the alien smuggling and what they saw during the sweep. Defendant was prosecuted for alien smuggling and felon in possession of a firearm. Defendant alleged the warrantless search of his home was not justified by exigent circumstances, and the warrant should not have issued due to lack of probable cause. The Tenth Circuit agreed. No exigent circumstances justified the officers’ nonconsensual, warrantless search (protective sweep) of Defendant’s home, and the excised search warrant affidavit failed to provide probable cause to search Defendant’s home. Alien smuggling is not part of that special class where the Court has held that probable cause that a defendant committed the crime suggests the concealment of evidence in the home.

5th Amendment

State v. Vargas, ___ Kan. ___ (No. 119741, filed 07/30/2021), affirming in part and reversing in part State v. Vargas, No. 119,741, 2019 WL 5485179 (Kan. App. 2019)

(unpublished opinion), which reversed one of Dominic Vargas' two alternatively charged convictions for fleeing or attempting to elude a law enforcement officer. The State charged Vargas with two alternative counts of fleeing or attempting to elude an officer: the first alleging, under "K.S.A. 2015 Supp. 8-1568(b)(1)(E)[,](c)(2)," that Vargas committed five or more moving violations (Count One) and the second alleging, under "K.S.A. 2015 Supp. 8-1568(b)(1)(C)[,](c)(2)," that Vargas engaged in reckless driving (Count Two). The State asserts it is appropriate for the court to keep both convictions, so long as one is held "in abeyance." The State is wrong. The infirmity of multiple convictions on alternatively charged theories arises from double jeopardy concerns, not from statute. This case raises double jeopardy concerns of multiple punishments for the same offense, as opposed to successive prosecutions. The panel overstepped by dictating that the second conviction must be reversed. The guilty verdicts on alternative counts charging the same crime merge by operation of law to result in a single conviction for fleeing or attempting to elude law enforcement. The matter is remanded to the district court with directions to enter an amended journal entry reflecting the merger of the two guilty verdicts into one conviction.

Crimes and Punishment

City of Shawnee v. Adem, ___ Kan. ___ (No. 121328, filed 08/27/2021), affirming 58 Kan. App. 2d 560, 472 P.3d 123 (2020). The Kansas Supreme Court ruled Adem’s conviction in Shawnee Municipal Court for sexual battery, as defined by the Shawnee Municipal Code, required him to register as a sex offender under the Kansas Offender Registration Act. Under the Act, registration is required for certain offenses defined by state statute and for comparable offenses. The Supreme Court ruled the municipal sexual battery conviction triggered the registration requirement. Justices Melissa Standridge and Eric Rosen dissented, arguing the Legislature did not intend for the Act to apply to municipal prosecutions.

Borden v. United States, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 19-5410, filed 06/10/2021). Borden was convicted of a felon-in-possession charge under the Armed Criminal Career Act (ACCA) and received an enhanced sentence. One of the three convictions alleged as predicates was for reckless aggravated assault in violation of Tennessee law. Borden argued that this offense is not a violent felony under ACCA’s elements clause because a mental state of recklessness suffices for conviction. In his view, only purposeful or knowing conduct satisfies the clause’s demand for the use of force “against the person of another.” The Supreme Court agreed. The mental states (mens rea) giving rise to criminal liability are purpose, knowledge, recklessness, and negligence. A person acts purposefully when he “consciously desires” a particular result. He acts knowingly when “he is aware that [a] result is practically certain to follow from his conduct,” whatever his affirmative desire. Recklessness and negligence are less culpable mental states because they instead involve insufficient concern with a risk of injury. A person acts recklessly, in the most common formulation, when he “consciously disregards a substantial and unjustifiable risk” attached to his conduct, in “gross deviation” from accepted standards. A person acts negligently if he is not but “should be aware” of such a “substantial and unjustifiable risk,” again in “gross deviation” from the norm. The ACCA definition of "crime of violence" means “an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another.” 18 U. S. C. §16(a). The phrase “against another,” when modifying the “use of force,” demands that the perpetrator direct his action at, or target, another individual. Reckless conduct is not aimed in that prescribed manner. Thus, the elements clause’s definition of “violent felony,” does not include reckless conduct, and such a conviction cannot be used for enhancement. Kavanaugh, Roberts, Alito and Barrett dissent.

Van Buren v. United States, 593 U. S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 19-783, filed 06/03/2021). Former Georgia police sergeant Nathan Van Buren used his patrol-car computer to access a law enforcement database to retrieve information about a particular license plate number in exchange for money. Although Van Buren used his own, valid credentials to perform the search, his conduct violated a department policy against obtaining database information for non-law-enforcement purposes. Unbeknownst to Van Buren, his actions were part of a Federal Bureau of Investigation sting operation. Van Buren was charged with a felony violation of the Computer Fraud and Abuse Act of 1986 (CFAA), which subjects to criminal liability anyone who “intentionally accesses a computer without authorization or exceeds authorized access.” 18 U. S. C. §1030(a)(2). The term “exceeds authorized access” is defined to mean “to access a computer with authorization and to use such access to obtain or alter information in the computer that the accesser is not entitled so to obtain or alter.” §1030(e)(6). A jury convicted Van Buren, and the District Court sentenced him to 18 months in prison. Van Buren argued on appeal that the “exceeds authorized access” clause applies only to those who obtain information to which their computer access does not extend, not to those who misuse access that they otherwise have. The United States Supreme Court reversed the conviction and held an individual “exceeds authorized access” when he accesses a computer with authorization but then obtains information located in particular areas of the computer—such as files, folders, or databases—that are off-limits to him. It does not cover those who, like Van Buren, have improper motives for obtaining information that is otherwise available to them.

State v. Valdiviezo-Martinez, ___ Kan. ___ (No. 111447, filed 05/21/2021). Changing their tune from a few years ago, the Supreme Court held that an employee can commit identity theft, as defined in K.S.A. 2012 Supp. 21-6107, by using the social security number of another to deceive an employer and induce the employer to rely on the deception and provide employment and its benefits. Cf. Kansas v. Garcia, 589 U.S. ___, 140 S. Ct. 791, 206 L. Ed. 2d 146 (2020).

State v. Nunez, ___ Kan. ___ (No. 121284, filed 05/14/2020). Nunez shot and killed someone he said had threatened and tried to rob him. These events allegedly occurred during a drug deal. The district court denied a motion to dismiss based on self-defense. When considering a motion under K.S.A. 21-5231, the district court must consider the totality of the circumstances, weigh the evidence before it without deference to the State, and determine whether the State has carried its burden to establish probable cause that the defendant's use of force was not statutorily justified. A district court is to follow a two-step process when making probable cause determinations on pretrial immunity motions. First, the district court must make findings of fact based on the stipulations of the parties and evidence presented at the hearing, along with any reasonable inferences therefrom. In this first step, the district court usually must resolve conflicts in the evidence in favor of one party or the other. Second, the district court must then reach a legal conclusion as to whether the State has met its probable cause burden [probable cause that the defendant's use of force was not statutorily justified] based on the court's factual findings. See [State v. ] Phillips, 312 Kan. 643, 656, 479 P.3d 176 (2021). Here, the motion was properly denied. The court made an the explicit finding—supported by the evidence— the victim was on the ground when at least one of the shots was fired into him.

State v. McFarland, ___ Kan.App.2d ___ (No. 122665, filed 04/02/2021). Justin McFarland made a Facebook post saying he was going to kill his ex-wife. He was convicted of intentional criminal threat. He appealed, claiming the jury instruction was insufficient. The Court of Appeals rejected his argument, finding the instruction was proper, and a threat to kill another need not include an explanation of the method of killing because ending someone's life is an inherent act of violence. While the complain alleged Justin made the threat to his ex-wife Chelsea, the jury instruction just said he intended to place "another," in fear. The Court said it didn't matter. The State had to prove Justin intended to place another in fear. It did so by putting on evidence that Justin intended to place Chelsea in fear.

Evidence

State v. Aguirre, ___ Kan. ___ (No. 119529, filed 04/23/2020). "[W]hen faced with a challenge to a district court's decision to admit or exclude expert testimony under K.S.A. 2020 Supp. 60-456(b), an appellate court must evaluate for abuse of discretion whether the district court properly performed its gatekeeper role:

 

• First, by use of the correct legal standard governing the admissibility of expert testimony; and

• Second, by application of that legal standard in evaluating whether (a) an expert is qualified to render an opinion and (b) the opinion is sufficiently relevant and reliable."


In this case, the district court did not apply the correct standard and abused its discretion in allowing open grave testimony which permitted Dr. Tomb to conclude that based on leaves found underneath bodies, the graves must have been open for any particular length of time before the internment of the bodies. Dr. Tomb's opinion was not the product of reliable principles and methods reliably applied to the facts of the case.

Medical Expenses

University of Kansas Hospital Authority v. Bd. of County Comm'rs of Franklin County, Kansas, ___ Kan. ___ (No. 120472, filed 09/10/2021), affirming in part and reversing in part 58 Kan.App.2d 367 (No. 120472, filed 06/26/2020). See case below for facts. According to the Supreme Court, no law enforcement agency had custody over the patient at the time the decision was made to obtain medical treatment for the patient, therefore the hospital has no one to look for for payment under K.S.A. 2020 Supp. 22-4612.

Miscellaneous

State v. Harris, ___ Kan. ___ (No. 122348, filed 05/14/2020). Harris, the upstanding individual that shot and nearly killed Brian Hill, alleged he did not get a fair trial because several officers entered the courtroom just before jury instructions. The Supreme Court disagreed. The district court's findings reflect no more than 15-20 officers walked into the courtroom at about the same time when there was a natural transition in the proceedings. Approximately half the officers were in uniform, while the rest were in plain clothes with their badges displayed and their service weapons noticeable. They sat quietly behind the State and made no outbursts or overt physical displays. And the court noted the jury by that stage already had seen a number of the officers testifying as witnesses. It is also relevant that when defense counsel objected to the officers' presence, the court asked if counsel would "feel better" if the court asked them all to leave. Counsel answered, "No, because that will cause attention." Agreeing, the court viewed "such an exaggerated gesture would create more of a distraction to jurors than simply allowing officers to remain." Additionally, the jury acquitted Harris of one charge, so the jury clearly wasn't intimidated by the officers' presence.

State v. Bodine, ___ Kan. ___ (No. 120620 & 120622, filed 05/07/21). Bodine argues that K.S.A. 2020 Supp. 22-2302(c), the statute allowing public access to affidavits or sworn testimony filed in support of a warrant or summons, is facially unconstitutional because it requires disclosure of an affidavit even when such disclosure would violate a defendant's fundamental right to an impartial jury, We decline Bodine's invitation to read K.S.A. 2020 Supp. 22-2302(c) as somehow prohibiting a court from considering a defendant's constitutional claims in determining whether to redact or seal affidavits or sworn testimony. The mere risk of prejudice to a defendant does not automatically justify refusing public access. See Press-Enterprise Co. v. Superior Court of Cal., County of Riverside, 478 U.S. 1, 15, 106 S. Ct. 2735, 92 L. Ed. 2d 1 (1986) (conclusory assertions that defendant's right to an impartial jury will be prejudiced are insufficient to overcome right of public access); [State v. Davis, 48 Conn. Supp. 147, 152, 834 A.2d 805 (2003)] (party seeking to limit public disclosure of arrest warrant must advance overriding protected interest that is likely to be prejudiced).

Finally, we note that "'the Sixth Amendment does not demand juror ignorance[.]'" [State v. Longoria, 301 Kan. 489, 507, 343 P.3d 1128 (2015)]. And information in a probable cause affidavit does not inherently create any greater risk of an unfair trial than other types of pretrial publicity. See Commonwealth v. Fenstermaker, 515 Pa. 501, 513, 530 A.2d 414 (1987) (discussing Sixth Amendment considerations relevant to public release of arrest warrants and noting that "in the usual case pretrial publicity does not automatically render a fair trial impossible")

Restitution

State v. Arnett, ___ Kan. ___ (No. 112572, 10/15/2021). Arnett provided a vehicle to her boyfriend who used it to commit burglaries. She was tagged with $33,248.83 in restitution as a result of her conspiracy conviction. She alleged the awarded restitution violated her right to a jury trial under the 5th and 6th Amendments. The Kansas Supreme Court partially agreed with her. The current structure of criminal restitution in Kansas violates section 5 of the Kansas Constitution Bill of Rights in part, but the offending part of that structure can be severed from the rest, which does not violate section 5. Specifically, insofar as the ordered restitution is given the effect of a civil judgment, it violates section 5. Otherwise, it does not. The following statutes (or portions of statutes) are unconstitutional: K.S.A. 60-4301; K.S.A. 60-4302; K.S.A. 60-4303; K.S.A. 2020 Supp. 21-6604(b)(2); and only the last sentence of K.S.A. 2020 Supp. 22-3424(d)(1). By allowing the judge to determine the legal damages proximately caused by the crime, rather than a jury, and then converting that determination into a civil judgment for the victim, the statutory scheme bypasses the traditional function of the jury to determine civil damages, thereby implicating section 5. A criminal defendant will not be faced with a civil judgment for criminal restitution unless it has been obtained separately through a civil cause of action. Standridge and Rosen dissent, and would hold that defendants have a right to have a jury determine restitution amounts.




2020 Case Update List

1st Amendment

United States v. Sineneng-Smith, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 19–67, filed 05/07/2020). Showing why they are the most reversed circuit yet again, the Ninth circuit went out on a limb to strike down a federal statute on grounds that weren't even argued by the parties. Respondent operated an immigration consulting firm in San Jose, California. She assisted clients working without authorization in the United States to file applications for a labor certification program that once provided a path for aliens to adjust to lawful permanent resident status. Respondent knew that her clients could not meet the long-passed statutory application-filing deadline, but she nonetheless charged each client over $6,000, netting more than $3.3 million. She was indicted for multiple violations of 8 U. S. C. §1324(a)(1)(A)(iv) and (B)(i). Those provisions make it a federal felony to “encourag[e] or induc[e] an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law,” §1324(a)(1)(A)(iv), and impose an enhanced penalty if the crime is “done for the purpose of commercial advantage or private financial gain,” §1324(a)(1)(B)(i). In the District Court, she urged that the provisions did not cover her conduct, and if they did, they violated the Petition and Free Speech Clauses of the First Amendment as applied. The District Court rejected her arguments and she was convicted on two counts under §1324(a)(1)(A)(iv) and (B)(i). She essentially repeated the same arguments on appeal to the Ninth Circuit. Again she asserted a right under the First Amendment to file administrative applications on her clients’ behalf, and she argued that the statute could not constitutionally be applied to her conduct. Instead of adjudicating the case presented by the parties, however, the court named three amici and invited them to brief and argue issues framed by the panel, including a question never raised by Respondent: Whether the statute is overbroad under the First Amendment. In accord with the amici’s arguments, the Ninth Circuit held that §1324(a)(1)(A)(iv) is unconstitutionally overbroad. The Supreme Court held the Ninth Circuit panel’s drastic departure from the principle of party presentation constituted an abuse of discretion.

2d Amendment

New York State Rifle & Pistol Association Inc. v. City of New York, New York, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 18-280, 04/27/2020). Issue: Whether New York City’s ban on transporting a licensed, locked and unloaded handgun to a home or shooting range outside city limits is consistent with the Second Amendment, the Commerce Clause and the constitutional right to travel. The Supreme Court determined the claims for declaratory relief were moot because New York repealed its law, but where the plaintiff may have some residual claim under the new framework that was understandably not asserted previously, the Court followed its practice to vacate the judgment and remand for further proceedings.

4th Amendment

State v. Daino, ___ Kan. ___ (No. 120824, filed 11/13/2020), affirming in part and reversing in part 57 Kan. App. 2d 653, 458 P.3d 252 (2020). Johnson county officers were dispatched to an apartment complex to investigate a narcotics odor. The complaint said marijuana smell was coming from apartment 48. Daino opened the door of that apartment a few inches. Officers then noted an overwhelming smell of both raw and burnt marijuana coming from the apartment. An officer told Daino he knew there was a lot of marijuana in the apartment because of the smell. Another officer then asked to come in the apartment. According to an audio recording, the officer told Daino: "Well, here's the deal, not a huge deal, but I gotta write a ticket if there's marijuana in the house, okay? 'Cause it's illegal, so let me step in with you real quick and we'll get it figured out, okay?" According to the officer, Daino responded by nodding his head and saying, "Okay. Let's do this." Daino then opened the door as far as it would go and stood out of the way. Daino alleged he he did not validly consent because he never verbally agreed to let the officers enter. The district court suppressed the evidence. The Court of Appeals reversed, Judge Buser dissenting. The Supreme Court reversed the Court of Appeals. It agreed with the Court of Appeals that an individual may communicate valid consent through nonverbal conduct, provided such conduct, under the totality of the circumstances, clearly expresses an individual's unequivocal, specific, free, and intelligent consent, in the absence of duress or coercion, and does not constitute mere acquiescence to a claim of lawful authority. However, it reversed because the question should have been answered by the district court using the correct legal standard.

State v. Lutz, ___ Kan. ___ (No. 117496, filed //2020). Topeka police stopped a car leaving a known drug house in which Lutz was a passenger. Officers called for a canine within 7 or 8 minutes of the stop. Officers ordered people out of the car. While getting out, officers saw drug paraphernalia near Lutz (a marijuana grinder in the pocket of the front passenger door). Officers then cancelled the canine search and searched the vehicle based on probable cause. Twelve minutes elapsed from the initial vehicle stop until the vehicle's occupants were asked to exit the car. The actions of the officers here, including calling for a drug dog, did not measurably extend the duration of the traffic stop beyond the time necessary to achieve the stop's basic objective of processing the observed traffic violation.

 State v. Smith, ___ Kan.App.2d ___ (No. 121619, filed 10/23/2020). Hutchinson officers were dispatched to a medical call from a concerned neighbor where a paper delivery woman backed into a residential driveway and remained in the running car for 45 minutes, hunched over behind the wheel. Officers had a possible ID, and after paramedics arrived searched her purse to confirm her ID and to see if there was any source of an overdose. The officer found a pipe covered with "crystal-like residue and burnt residue." In the car, he found a spoon with a cotton ball and residue on it under the car's radio. Smith filed a motion to suppress the evidence seized from her purse and car, arguing that the officers' continued search of her vehicle and purse was unlawful because she was too intoxicated to consent to the search and that the search was not justified as part of the officer's efforts to provide her with emergency aid. The Court of Appeals disagreed. It held there is no bright-line demarcation that defines when officers' limited authority to conduct a warrantless search under the emergency-aid exception ends. Instead, the touchstone of a court's analysis is reasonableness: whether the officers reasonably believe the search is necessary to provide emergency assistance and whether the search itself is reasonable in manner and scope. The scope hear was reasonable because the search was tailored to helping aid the paramedics and firefighters to treat Smith more effectively.

State v. Ellis, 311 Kan. 925, 469 P.3d 65 (No. 120046, 2020). The suspect had been in a bathroom at Casey's for over 45 minutes. An officer sent to check her welfare took her driver's license and ran her for warrants. She had a warrant and was arrested. She also had drugs and paraphernalia in her purse. The Court held that running her license turned the encounter into an illegal detention.

Heirs of Dominique White v. City of Topeka, (D. Kan. Case No. unknown, profiled in Topeka Capital Journal 09/14/18). Andrew Stroth, managing partner for Action Injury Law Group, sued the City and officers Cruse and Mackey after they fatally shot White at Ripley park. Officers responded to a shots fired call. White was uncooperative, had a gun in his pocket and tried to flee. The Shawnee Co. District Attorney reviewed the White case and opted not to file criminal charges. District judge Daniel Crabtree granted the officers summary judgment based on qualified immunity on September 28, 2020.

State v. Keyes, ___ Kan. ___ (No. 118894, filed 09/11/2020). A Grant County jury convicted Michael Keyes of first-degree premeditated murder for the death of Jimmy Martin. On direct appeal, Keyes argued that the district court erred in refusing to give his requested jury instructions of self-defense and involuntary manslaughter. The Supreme Court agreed. The district court erred in not instructing the jury on self-defense, and it reversed remanded Keyes' case to the district court. In a odd love triangle, Jimmy Martin (Tina's ex-husband), Tina Martin and Keyes (Tina's boyfriend) all lived on Tina Martin's property. Jimmy and Keyes had separate trailers. According to Tina's son, Keyes broke into Martin's trailer in the middle of the night and shot him to death because he was harassing women. Keyes eventually admitted to shooting Martin four times: twice in the head and twice in the chest. Keyes however said he had to shoot Martin because he was sent to evict Martin and Martin attacked him with a knife. K.S.A. 2019 Supp. 21-5222 indicates that a person has the right to use deadly force if they reasonably believe that such use of deadly force is necessary to prevent imminent death or great bodily harm to such person. Keyes testimony was sufficient to establish a claim of self-defense.

United States v. Neugin, 958 F.3d 924 (10th Cir. 2020). (Summary mostly by FLETC). Two Cherokee Nation deputies were dispatched to a restaurant parking lot to respond to a verbal altercation between Jack Neugin and his girlfriend, Julie Parrish. Upon arrival, one of the deputies found Neugin sitting on the curb and Parrish inside the restaurant. After discovering that the couple’s pickup truck had broken down, one of the deputies offered to help Parrish arrange a ride. When Parrish told the deputy that she needed to retrieve her belongings, the deputy accompanied her to the truck. While Neugin and Parrish stood with one of the deputies at the back of the truck, the other deputy, without asking, opened the lid of the hard-shell “camper” attached to the back of the truck. As he opened the camper, the deputy looked inside and saw a large bucket containing several rounds of ammunition. After Neugin claimed ownership of the ammunition, the deputy contacted dispatch and requested a background check on Neugin. Dispatch responded that Neugin had a felony conviction. The deputy asked Neugin if he had a firearm, and Neugin said no. Parrish then told the deputies that Neugin had a firearm and gave them consent to search the truck. The deputies found a shotgun under a suitcase in the back of the truck and arrested Neugin. The government charged Neugin with being a felon in possession of a firearm and ammunition. Neugin filed a motion to seize the evidence seized from the truck. Neugin argued that the deputy violated the Fourth Amendment by opening the camper attached to the back of his truck, which led to the discovery of the ammunition. The district court disagreed. The court held that the deputy was acting as a “community caretaker” when he opened the camper. The court held that the ammunition was in plain view once the camper was opened and was lawfully seized by the deputies when they learned that Neugin was a felon. Neugin appealed. The Tenth Circuit Court of Appeals found that by covering the truck’s bed with camper shell, Neugin manifested an expectation that the contents inside would remain hidden. The court added, “as with a closed trunk, society [would be] willing to recognize that expectation as reasonable. Consequently, the court held that the deputy intruded on Neugin’s expectation of privacy when he opened the lid of the camper to examine the contents in the bed of the truck, thereby conducting search under the Fourth Amendment. Next, the court disagreed with the district court’s finding that the deputy was acting as a “community caretaker” when he opened the camper. The community-caretaking exception to the Fourth Amendment’s warrant requirement allows the government to introduce evidence obtained through searches that are not related to the “detection, investigation, or acquisition of evidence relating to the violation a criminal statute.” Non-investigatory searches of automobiles under the community-caretaking exception do not violate the Fourth Amendment as long as they are “warranted [by] state law or sound police procedure, and are justified by concern for the safety of the general public . . .” The court held that the community-caretaking exception did not apply because the government did not establish that “state law or sound police procedure” warranted opening the camper nor had it demonstrated how opening the camper was “justified by concern for the safety of the general public.”

United States v. Mayville, 955 F.3d 825 (10th Cir. 2020). A Utah trooper stopped a car for speeding. Approximately 19 minutes elapsed from the trooper’s initial contact with the driver until an alert by the drug sniffing dog. In the meantime, the trooper was running record checks and a III, and was working on a citation and attempted to determine the owner of the car. Less than 30 seconds after the alert, dispatch responded to the trooper’s request with information indicating that the driver had a criminal record. A search of the car yielded methamphetamine, heroin, and two guns, one equipped with a silencer. The officers arrested the driver, who was subsequently charged by the government with drug and firearm-related offenses. Mayville claimed that the trooper’s decision to run a Triple I criminal history check through dispatch, rather than on his MDT, was not reasonably related to the reason for the traffic stop; therefore, the trooper unreasonably extended the duration of the stop while he waited for the return from dispatch. The court disagreed. The court concluded that even if the Triple I check prolonged the duration of the stop it was reasonable because: 1) the computer in the trooper’s patrol car would have provided limited information with respect to out-of-state drivers such as Mayville, 2) the trooper developed concerns for his safety based on Mayville’s apparent attempt to hide something as the trooper approached his car, and 3) Mayville’s inability to provide registration paperwork for the vehicle. Given these circumstances, the court held that the trooper’s decision to run a Triple I check through dispatch as opposed to limiting his records check to the computer in his patrol car did not unreasonably prolong the stop.

Kansas v. Glover, 589 U.S. ___, 140 S. Ct. 1183, ___ L. Ed. 2d ___ (No. 18-556, filed 04/06/2020), reversing State v. Glover, 308 Kan. 590, 591, 422 P. 3d 64, 66 (2018). Issue: Whether, for purposes of an investigative stop under the Fourth Amendment, it is reasonable for an officer to suspect that the registered owner of a vehicle is the one driving the vehicle absent any information to the contrary? The United States Supreme Court said yes. While on routine patrol, Douglas County Deputy Mark Mehrer observed a 1995 Chevrolet pickup truck and ran the truck’s license plate number. Deputy Mehrer learned Charles Glover, Jr., had registered the vehicle and Glover’s Kansas driver’s license had been revoked. Deputy Mehrer did not observe any traffic violations but initiated a traffic stop based on his assumption that Glover was driving the vehicle. He did not try to confirm the identity of the driver before initiating the traffic stop. The State charged Glover with driving as a habitual violator. He filed a motion to suppress evidence, arguing the officer lacked reasonable suspicion to initiate the traffic stop. The district court found that the officer’s assumption that the car’s driver was the registered owner was unreasonable and granted the motion to suppress. The State appealed that ruling and the Court of Appeals reversed. The Supreme Court of Kansas reversed the Court of Appeals and affirmed the district court’s ruling. They held that the officer lacked an articulable and reasonable suspicion that the unidentified driver did not have a valid driver’s license; the officer’s assumption was only a hunch and was unsupported by a particularized and objective belief. The State appealed. The United States Supreme Court disagreed and held when the officer lacks information negating an inference that the owner is the driver, the stop is reasonable. It reasoned that courts must "permit officers to make "commonsense judgments and inferences about human behavior." Illinois v. Wardlow, 528 U. S. 119, 125. P.3.It cautioned, however, that it's holding is narrow. The presence of additional facts might dispel reasonable suspicion.

Hernandez et al. v. Mesa, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 17-1678, filed 02/25/2020)(summary mostly by LII). Mesa, a United States Border Patrol Agent, shot and killed Sergio Adrián Hernández Güereca, a 15-year-old Mexican national, in a tragic and disputed cross-border incident. Mesa was standing on U. S. soil when he fired the bullets that struck and killed Hernández, who was on Mexican soil, after having just run back across the border following entry onto U. S. territory. Agent Mesa contends that Hernández was part of an illegal border crossing attempt, while petitioners, Hernández’s parents, claim he was playing a game with his friends that involved running back and forth across the culvert separating El Paso, Texas, from Ciudad Juarez, Mexico. Petitioners sued for damages in U. S. District Court under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388, alleging that Mesa violated Hernández’s Fourth and Fifth Amendment rights. The District Court dismissed their claims, and the United States Court of Appeals for the Fifth Circuit affirmed. The Supreme Court vacated that decision and remanded for further consideration in light of Ziglar v. Abbasi, 582 U. S. ___, and the Fifth Circuit again affirmed, refusing to recognize a Bivens claim for a cross-border shooting. On Appeal, the United States Supreme Court affirmed and held that Bivens’ holding does not extend to claims based on a cross-border shooting. The expansion of a Bivens remedy that impinges on foreign relations—an arena “so exclusively entrusted to the political branches . . . as to be largely immune from judicial inquiry,” Haig v. Agee, 453 U. S. 280, 292—risks interfering with the Executive Branch’s “lead role in foreign policy,” Medellín v. Texas, 552 U. S. 491, 524. A cross-border shooting affects the interests of two countries and, as happened here, may lead to disagreement. It is not for this Court to arbitrate between the United States and Mexico, which both have legitimate and important interests at stake and have sought to reconcile those interests through diplomacy. Another factor is the risk of undermining border security. Additionally, Congress has repeatedly declined to authorize the award of damages against federal officials for injury inflicted outside U. S. borders. For example, recovery under 42 U. S. C. §1983 is available only to “citizen[s] of the United States or other person[s] within the jurisdiction thereof.” The Federal Tort Claims Act bars “[a]ny claim arising in a foreign country.” 28 U. S. C. §2680(k). And the Torture Victim Protection Act of 1991, note following 28 U. S. C. §1350, cannot be used by an alien to sue a United States officer. When Congress has provided compensation for injuries suffered by aliens outside the United States, it has done so by empowering Executive Branch officials to make payments under circumstances found to be appropriate. See, e.g., Foreign Claims Act, 10 U. S. C. §2734. Congress’s decision not to allow suit in these contexts further indicates that the Judiciary should not create a cause of action that extends across U. S. borders either. These factors can all be condensed to the concern for respecting the separation of powers. Ginsburg, Breyer, Sotomayor, and Kagan all dissent.

State v. Arceo-Rojas, ___ Kan.App.2d ___ (No. 119266, filed 02/07/2020). On officer stopped the defendant on I-70 for driving too long in the left lane and an unsafe lane change. During the traffic stop the officer began to suspect that Arceo-Rojas and her passenger were transporting illegal drugs. After completing the traffic stop, he detained Arceo-Rojas until a K-9 unit arrived (about 5 minutes later) and performed a dog sniff of her car. The dog signaled that he detected drugs in the car. The officer found 54 pounds of marijuana. The State charged Arceo-Rojas with possession of marijuana with intent to distribute and with no drug tax stamp. Arceo-Rojas moved to suppress the drug evidence. The trial court denied her motion and convicted her on both counts after a bench trial. Defendant appeals and argues there was no reasonable suspicion for both the initial traffic stop and the later extension of the stop while waiting for the K9 unit. The Court of Appeals disagreed. It held the traffic violations were sufficient reason to stop the vehicle, and there was reasonable suspicion to further detain based on the driver and passenger's extreme nervousness, a strong air freshener fragrance coming from the car, a short-duration car rental agreement from Washington, and jacked up travel stories. Judge Arnold-Burger dissents, and would find no reasonable suspicion for the stop nor the detention. She indicates detest for courier profile clues and says the officers actions were mere hunches.

State v. McKenna, ___ Kan.App.2d ___ (No. 119431, filed 01/31/2020). A Hutchinson officer found Defendant seemingly passed out behind the wheel of her parked car at about 2 a.m. in a residential neighborhood. He eventually obtained her name and asked dispatch to "check the in-house" for a Tia McKenna. Two minutes later, dispatch informed him that McKenna had an outstanding warrant for her arrest. The officer arrested McKenna based on that warrant and found methamphetamine on her person. She moved to suppress, alleging an invalid stop. The Court of Appeals found it was a valid public safety stop and affirmed denial of the motion. State v. Daino, ___ Kan.App.2d ___ (No. 120824, filed 01/10/2020). Olathe officers were sent to investigate a narcotics odor in an apartment complex. Officers spoke with a male who told them that someone in unit 48 was partying and he could smell marijuana. Before the officers approached that unit, they could smell marijuana but could not tell where the smell was coming from. When the officers arrived at the door of unit 48, they knocked on the door but did not announce themselves. After about a minute, Daino, who was 18, answered the door and opened it 8-10 inches, enough to reveal a part of his body. The officers then noticed an overwhelming odor of fresh marijuana coming from inside Daino's apartment and that there had been a lot of smoking as well. One of the officers told Daino that he knew there was a lot of marijuana in the apartment because he could smell it, then said: "Well, here's the deal, not a huge deal, but I've got to write a ticket if there's marijuana in the house, Okay? Because it is illegal, so let me step in with you real quick and we will get it figured out, okay?" McKeirnan testified that Daino then "nodded and just said, 'Okay. Let's do this.' And then at that point he opened the door for me and invited me in." Once inside, officers found 27 grams of marijuana and lots of paraphernalia. Daino filed a motion to suppress alleging there was a lack of consent to enter. The district court granted the motion. It found that even though a reasonable officer would have found Daino's actions to be free, specific, and unequivocal consent for the officers to enter the apartment, Kansas law does not allow implied consent. The Court of Appeals reversed. It held that while silence alone is not consent, Poulton, 37 Kan. App. 2d at 307, silence coupled with clear, responsive, and unequivocal actions can be. And nothing in our precedent requires consent to be verbal—it merely requires that consent be clear and unequivocal. Buser dissents, and would find the State failed to provide clear and positive testimony that consent to enter the apartment to conduct a search and seizure was unequivocal, specific, and freely and intelligently provided.

5th Amendment

State v. Dale, ___ Kan. ___ (No. 117162, filed 10/16/2020). Dale threatened two teenagers with a BB gun while his companion grabbed their property. He was convicted of the aggravated robbery of two victims, and theft involving a third victim. His aggravated robbery convictions were reversed on appeal due to an instruction error. Prior to retrial, Dale filed a motion to dismiss alleging the affirmance his theft conviction by the Court of Appeals finalized the conviction, and since all crimes were based on the same conduct, retrial would violate his right against double jeopardy. The Supreme Court disagreed. K.S.A. 21-3107(2)(a). The statute begins with the words "[u]pon prosecution." The Legislature chose not to use the words "upon conviction" or "upon sentence." The plain language thus directs us to the entire prosecution. Likewise, the constitutional protection from a second prosecution does not prevent the continued prosecution of some counts in a prosecution after a criminal defendant has been convicted on other counts.

 State v. Parker, ___ Kan. ___ (No. 118349, filed 03/13/2020). Parker shot and killed his boss and was convicted of murder. He alleged his Miranda waiver was invalid because the investigators did not take sufficient steps to ensure that he understood his Miranda rights. The Court disagreed. There is no requirement that Miranda rights be read aloud in order to obtain a legally sufficient waiver of the right to remain silent. In this case, Parker was provided a written explanation of his rights and he insisted that an oral explanation of the rights was condescending behavior that he would not tolerate.

Fifth Amendment

United States v. Young, 962 F.3d 1196 (10th Cir. 2020). An Oklahoma deputy saw defendant's car swerving on the roadway and attempted to stop it. A chase ensued. After the arrest, the deputy retraced Young’s steps to Defendant's car and found a small headphone case containing approximately 4 grams of methamphetamine. They arrested Young, but later released him. Later that day, they found a black bag containing approximately 93 grams of methamphetamine near where Young stopped his car. They rearrested Young and, during a custodial interview, Young admitted to possessing the smaller quantity of methamphetamine but denied that the larger quantity was his. Four days later, Young was still in the county jail when a Federal Bureau of Investigation (FBI) Special Agent and a state narcotics agent arrived to interview him. After advising Young of his Miranda rights, Young waived them and agreed to speak with the agents. At the beginning of the interview, Young said that he was concerned about who would pick up his pregnant fiancée when she was released from rehab the next day and worried about how criminal charges would affect his ability to raise his new baby. Young also said that he was sick to his stomach and wanted to “roll over and die.” The FBI agent responded, saying that he tried to help people in trouble if they were trying to “do what's right and get on the right path.” The agent further assured Young that after their conversation the agent would do his best to try and help. He went on to tell Young that he was "on his side," and later said he had spoken to the judge that authorized his arrest warrant and indicated the judge would come off the 5-10 year sentence if Young just owned up to the possession charges and cooperated. Young eventually did admit to possessing both containers of methamphetamine and he provided information about the source and his drug-dealing activities. Young alleged his confession should be suppressed as involuntary. The Circuit agreed. It noted the agent’s promises of leniency, and called the agent's behavior as “misconduct” that included “misrepresentations,” “inaccurate representations,” and “improper representations about his ported access to a federal judge.” Viewing the totality of the circumstances, the court found the agent’s misconduct so serious that the favorable evidence could not overcome it. Consequently, it found Young’s statement’s involuntary and vacated his conviction.

14th Amendment

State v. Harris, ___ Kan. ___ (No. 116515, filed 07/17/2020). Harris, a convicted felon, pulled and used a pocketknife that had a 3 and 1/2-inch blade with serrations. Harris moved for dismissal alleging the knife definition was too vague. The district court denied the motion, ruling Harris lacked standing because the knife at issue clearly fell within the residual clause of the statute prohibiting the possession of "any other dangerous or deadly cutting instrument of like character." The Supreme Court disagreed and held the residual clause "or any other dangerous or deadly cutting instrument of like character" in K.S.A. 2019 Supp. 21-6304 is unconstitutionally vague because it fails to provide an explicit and objective standard of enforcement. It reversed the Court of Appeals' conclusion to the contrary in State v. Harris, No. 116,515, 2018 WL 473605, at *4 (Kan. App. 2018) (unpublished opinion). Biles, Rosen & Green dissent.

 State v. Little, ___ Kan.App.2d ___ (No. 120214, filed 06/12/2020). Defendant was convicted of rape, aggravated criminal sodomy, and other offenses. He appealed claiming one part of the sentence he received—lifetime supervision when he's released after serving his prison sentence, violates his right to equal protection. Defendnat claims that because others who commit serious crimes, like murder, aren't subject to lifetime supervision, his constitutional rights were violated. The Court disagrees. It held defendant was not similarly situated to those convicted of other serious, but not sexually violent, crimes n because of the high risk of recidivism for his class of offenders.

Ramos v. Louisiana, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 18-5924, filed 04/20/2020). In a 5-4 decision, the Court decides the 14th Amendment fully incorporates the Sixth Amendment guarantee of a unanimous verdict. Louisiana and Oregon are both in violation of the Constitution by allowing less than unanimous verdicts to convict a defendant of a serious offense. Louisiana's law was race-based, designed to keep blacks from meaningful jury service. Oregon's law was less overtly so, but still can't deprive a defendant of a vital common law right. The Court abandons its decisions in Apodaca v. Oregon, 406 U. S. 404 (1972), and Johnson v. Louisiana, 406 U. S. 356 (1972).

Kahler v. Kansas, ___ U.S. ___ No. 18-6135, filed 03/23/2020. (Summary mostly by LII). Kahler was convicted of capital murder after he shot and killed four family members in Osage County, Kansas. Prior to trial, he argued that Kansas's insanity defense violates due process because it permits the State to convict a defendant whose mental illness prevented him from distinguishing right from wrong. The court disagreed and the jury returned a conviction. During the penalty phase, Kahler was free to raise any argument he wished that mental illness should mitigate his sentence, but the jury still imposed the death penalty. The Kansas Supreme Court rejected Kahler's due process argument on appeal. The Supreme Court agreed. Under Kansas law a defendant may raise mental illness to show that he "lacked the culpable mental state required as an element of the offense charged," Kan. Stat. Ann §21-5209. Kansas does not recognize any additional way that mental illness can produce an acquittal, although a defendant may use evidence of mental illness to argue for a lessened punishment at sentencing. See §§21-6815(c)(1)(C), 21-6625(a). Due process does not require a state to adopt the moral incapacity test from M'Naghten's Case, 10 Cl. & Fin. 200, 8 Eng. Rep. 718. The moral incapacity test is not so rooted in the traditions and conscience our people as to be ranked as fundamental.

State v. Londro Emanuel Patterson III, ___ Kan. ___ (No. 118180, filed 01/13/2020). (Summary by th KBA). The Supreme Court affirmed Patterson's convictions and sentencing arising from the 2015 armed robbery of a Shawnee gun shop during which a store owner was killed. Patterson and three accomplices tried to rob She's A Pistol, jointly owned by Jon and Rebecca Bieker. Jon was killed by one of Patterson's accomplices when gunfire erupted. A jury convicted Patterson of felony murder, conspiracy to commit robbery, attempted aggravated robbery, and aggravated battery. The district court sentenced him to a hard-25 life sentence for the murder conviction and consecutive 47-, 34-, and 13-month prison terms for the remaining three convictions. On appeal, Patterson argued the felony murder statute, which defines a killing occurring during commission of a dangerous felony as first-degree murder, denied him due process because the jury did not have to determine whether he had a specific intent to kill. He also argued there were problems with the jury instructions and comments by the prosecutor, and that his hard-25 life sentence was too severe for his crime because he was 19 years old at the time of the crime. The court rejected each claim and affirmed his convictions.

Breath tests

City of Colby v. Foster, ___ Kan.App.2d ___ (No. 121373, filed 07/17/2020). Breath tests may be administered as a search incident to lawful arrest for drunk driving. After July 1, 2018, breath tests administered incident to an arrest can be admitted into evidence in a criminal trial regardless of whether the officer complied with the implied consent law. But the law in effect at the time of this case, – May 6, 2018, requires ICAs before a breath test. Foster's test result (0.236) should have been suppressed.

Civil & Criminal Liability

State v. Dukes, ___ Kan.App.2d ___ (No. 121790, filed 02/12/2021). Dukes shot and killed Berryman, who had aggressively approached Dukes' truck after making several threats against Dukes. The State charged Dukes with voluntary manslaughter, alleging he acted with an honest but unreasonable belief that deadly force was justified. Dukes moved to dismiss the charge, asserting his actions were immune from prosecution. He claimed that he "fired his gun . . . in reasonable anticipation that [Berryman] intended to shoot him." The district court initially denied, then granted Dukes' motion. The Court of Appeals affirmed. It held the district court used the correct legal standard: whether the State showed a reasonable person would believe Dukes' use of deadly force "was not justified." The State bore the burden to establish probable cause to believe that Dukes' use of deadly force was not legally justified. The district court did not err when it found the State failed to make this showing and granted Dukes' request for immunity under K.S.A. 2020 Supp. 21-5231(a).

Tanzin et al. v. Tanvir et al., ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 19–71, filed 12/10/2020). The Religious Freedom Restoration Act of 1993 (RFRA) was enacted in the wake of Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872, to provide a remedy to redress Federal Government violations of the right to free exercise under the First Amendment. Respondents are practicing Muslims who sued under RFRA, claiming that federal agents placed them on the No Fly List for refusing to act as informants against their religious communities. They sought injunctive relief against the agents in their official capacities and monetary damages against the agents in their individual capacities. As relevant here, the District Court found that RFRA does not permit monetary relief and dismissed their individual-capacity claims. The Second Circuit reversed, holding that RFRA’s remedies provision encompasses money damages against Government officials. The Supreme Court agreed with the 2nd Circuit. RFRA’s express remedies provision permits litigants, when appropriate, to obtain money damages against federal officials in their individual capacities.

Herington v. City of Wichita, ___ Kan.App.2d ___ (No. 120329, filed 12/04/2020). A Wichta officer fatally shot Troy Lanning II after a pursuit. Lanning's mother sued various defendants in the United States District Court. The district court granted summary judgment to Defendants on most claims, and dismissed the state law claims for lack of jurisdiction. See Herington v. City of Wichita, No. 6:14-cv-01094-JTM, 2017 WL 76930, at *13 (D. Kan. 2017) (unpublished opinion). Herington refiled the state claims in Sedgwick County District Court. That court granted defendants summary judgment, alleging it had to apply res judicata as the Kansas Supreme Court has defined that rule of preclusion, simply because those claims had been asserted in the federal action and were later dismissed without any consideration of their validity. The Court of Appeals affirmed. The res judicata rule adopted in Stanfield v. Osborne Industries, Inc., 263 Kan. 388, 403-04, 949 P.2d 602 (1997), and endorsed in Rhoten v. Dickson, 290 Kan. 92, Syl. ¶ 7, 223 P.3d 786 (2010), requires the Court of Appeals to affirm. Atcheson concurs, stating the Kansas Supreme Court fashioned an eccentric and exceedingly unfair rule of res judicata.

McKesson v. Doe, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 19-1108, filed 11/02/2020). Petitioner DeRay Mckesson organized a Black Lives Matter demonstration in Baton Rouge, Louisiana, to protest a shooting by a local police officer. The protesters, allegedly at Mckesson’s direction, occupied the highway in front of the police headquarters. As officers began making arrests to clear the highway, an unknown individual threw a “piece of concrete or a similar rock-like object,” striking respondent Officer Doe in the face. 945 F. 3d 818, 823 (CA5 2019). Officer Doe suffered devastating injuries in the line of duty, including loss of teeth and brain trauma. Though the culprit remains unidentified, Officer Doe sought to recover damages from Mckesson on the theory that he negligently staged the protest in a manner that caused the assault. The District Court dismissed the negligence claim as barred by the First Amendment. 272 F. Supp. 3d 841, 847–848 (MD La. 2017). A divided panel of the Court of Appeals for the Fifth Circuit reversed. The Supreme Court found that Lousiana law was too uncertain to decide the case and certified to the Lousiana Supreme Court the following questions: (1) whether Mckesson could have breached a duty of care in organizing and leading the protest and (2) whether Officer Doe has alleged a particular risk within the scope of protection afforded by the duty, provided one exists. See 945 F. 3d, at 839 (opinion of Willett, J.).

Emmett v. Armstrong, 973 F.3d 1127 (10th Cir. No. 18-8078, filed 09/01/2020) (summary mostly by FLETC); Wyoming officers were dispatched to a fight at a wedding reception at the local Elks Club. One man began walking away and refused to stop. An officer tackled him, then almost immediately drive-stun tased him in his abdomen. The arrested party sued, claiming the seizure was unreasonable and excessive force. The district court found the officer was entitled to qualified immunity. On appeal, the 10th Circuit agreed the seizure was reasonable, but reversed on the excessive force claim. Applying the factors outlined by the Supreme Court in Graham v. Connor, the court held the officer's use of the taser was objectively unreasonable. The court further held that at the time of the incident, October 2013, it was clearly established under Tenth Circuit case law that the use of a taser by a police officer on a non-violent misdemeanant who is not actively resisting arrest is unreasonable.

Montgomery v. Saleh, ___ Kan. ___ (No. 117518 & 117519, filed 06/26/2020), affirming 55 Kan. App. 2d 429, 419 P.3d 8 (2018). Topping Williams v. C-U-Out Bail Bonds, 310 Kan. 775, 778, 450 P.3d 330 (2019) as the worst decision for police liability, the Supreme Court declines to apply the public duty doctrine in a pursuit case, and also holds the officer and the state are not entitled to immunity. The majority concludes the evidence could support a reasonable conclusion that Trooper Saleh breached his duty of care under K.S.A. 8-1506. KHP sergeant Tim Tillman was off-duty and driving at Topeka and 32nd street. In the car next to him, he saw the passenger with a knife and he swung it toward the driver. He called in the tag, which came back to a different vehicle. On-duty officer Saleh responded and initiated a pursuit when the driver failed to stop. The vehicle turned right onto 20th street and rapidly accelerated Eastbound. It then turned right onto Kansas Avenue without stopping at a stop sign. The driver ran a red light at 21st & Kansas. Speeds exceeded 100 miles per hour. Saleh fell behind and terminated the pursuit. The vehicle ran a red light at 29th & Kansas and hit the vehicle containing plaintiffs. The pursuit only lasted about 1 ½ minutes and Saleh was about two and one half blocks behind the vehicle at the time of the collision. Both plaintiffs were injured in the crash and sued the state and Saleh. The district granted summary judgment for defendants, holding there was insufficient proof of causation. The Court of Appeals reversed the district court's finding on proof of causation and remanded for further proceedings. Both sides appealed. The Supreme Court reversed the district court's decision. It said a jury could conclude that the Toyota's improper tag did not indicate the driver posed a danger to others which outweighed the danger of a high-speed pursuit. Still, Saleh initiated a pursuit, and he continued that pursuit after observing Horton's reckless driving. Saleh even continued the pursuit once he realized it was unlikely to be successful. On causation: In Robbins v. City of Wichita, 285 Kan. 455, 470, 172 P.3d 1187 (2007). we moved to the brink of holding that law enforcement's conduct can be the proximate cause of injuries to a third party. We also note a majority of jurisdictions have concluded that causation in police pursuit cases is a question of fact for the jury. See Montgomery, 55 Kan. App. 2d at 446-47 (listing cases). The Court now join this majority and hold law enforcement's conduct during a pursuit can be the legal cause of a third party's injuries. Further, a jury could reasonably conclude that Horton was aware of Saleh's pursuit. Experience would also allow the jury to draw the conclusion that Horton "engaged in such reckless conduct primarily because he was being chased by police, and that this misconduct would have ceased had the police discontinued the pursuit. This evidence could support a reasonable conclusion that Trooper Saleh breached his duty of care under K.S.A. 8-1506. A jury could conclude that the Toyota's improper tag did not indicate the driver posed a danger to others which outweighed the danger of a high-speed pursuit. Still, Saleh initiated a pursuit, and he continued that pursuit after observing Horton's reckless driving. Saleh even continued the pursuit once he realized it was unlikely to be successful. Drawing all inferences in favor of the plaintiffs, the Court believes a jury could reasonably conclude Saleh realized his pursuit of the Toyota posed an imminent danger and he consciously and unjustifiably disregarded that danger. On immunity, to overcome the public duty doctrine, a plaintiff must show the officer owed an individual duty. Williams v. C-U-Out Bail Bonds, 310 Kan. 775, 778, 450 P.3d 330 (2019). K.S.A. 8-1506 creates that duty. Further, a law enforcement officer's pursuit of a fleeing suspect does not fall within the discretionary function exception under K.S.A. 75-6104(e), or the "method of providing police . . . protection" exception found under K.S.A. 75-6104(n). Saleh's pursuit of Horton is not a basic matter of police protection, such as the number of personnel and cars necessary for the operation of the police department. Rosen, along with Stegall and Green dissent and would find summary judgment appropriate - holding plaintiffs failed to establish breach of a duty and causation. Saleh had reason to believe a violent crime might be taking place had reason to believe the driver of the Toyota and/or its occupant were at risk independent of any traffic infraction or improper license tag. Saleh did not exhibit a conscious and unjustifiable disregard for imminent danger. Also, there is insufficient proof of causation. Dr. Alpert's opinion on causation does not rise above mere speculation.

Henderson v. Montgomery County Board of Commissioners, ___ Kan.App.2d ___ (No. 120369, filed 02/07/2020). Henderson picked up a hitchhiker who turned out to be a fugitive that shot an Oklahoma officer earlier in the day. After the truck stopped voluntarily, a close-by Montgomery County deputy tried to stop the fugitive near Henderson's truck and the fugitive shot at the deputy. The deputy returned fire and accidently struck Henderson. Henderson sued. The district court granted the defendants summary judgment finding them not liable under the public duty doctrine, since no special relationship was shown, and found them immune from liability under the discretionary function exception, K.S.A. 75-6104(e). The Court of Appeals agreed with discretionary function immunity. A law enforcement officer's decision to return fire at a fleeing felon falls within the discretionary function exception in K.S.A. 75-6104(e).

Estate of Randolph v. City of Wichita, ___ ___ Kan.App.2d ___ (No. 118842, filed 01/21/20). Randolph had a history of mental illness and seemed upset or angry. His mother called 911 to secure assistance in transporting him to a mental health facility. Two Wichita officers separately responded to the call. Less than 13 minutes later, Officer Ryan Snyder shot Randolph four times, killing him. This was after Randolph "burst through a screen door and began walking across the front yard," in an aggressive manner towards officers while having a knife in his hand. Officers tried a Taser first, but it had no effect. The estate filed suit against the officer and the city. The district court granted the defendants summary judgment. According to the Court of Appeals, the district court did not find the essential uncontroverted facts, it merely "adopted by rote all of the individual factual representations the defendants offered in support of their motion and virtually all of the counter representations the plaintiffs submitted in opposition." The Court of Appeals affirmed as to most of the negligence claims alleged against the defendants based on various KTCA immunities, but reversed and remanded for trial the following claims:

        The estate's claim against Snyder for battery based on his use of the Taser against Randolph

        The estate's claim against Snyder for battery based on his shooting of Randolph, including what has been denominated as the wrongful death claim that appears to include both survival claims of Randolph and claims of Randolph's heirs as a result of his death

        Alford-Allen's claim of assault against Snyder for pointing his pistol at her as she approached Randolph after the shooting

        The family members' claims for assault against Snyder based on his use of the pistol and

        The family members' claims against Snyder for the intentional infliction of emotional distress based on the death of Randolph.

Contempt of Court

State v. Towner, ___ Kan.App.2d ___ (No. 117861, filed 01/10/2020). Refusing to testify can be punished by contempt. A judge has no duty to sua sponte hold an in camera hearing to determine if a witness is fearful to testify when the witness makes no such request. In this case Judge Debenham sentenced Pattrick Towner at to six months after he refused to testify at a preliminary hearing involving the murder of Geovani Plakio. Towner argues he was threatened into not testifying and the district court erred by not holding an in camera hearing so that Towner could explain why he was not testifying. The Court of Appeals found no such duty and affirmed the sentence.

Crimes and Punishments

State v. Baumgarner, ___ Kan.App.2d ___ (No. 121092, filed 01/22/2020). To convict for criminal use of a weapon under K.S.A. 2019 Supp. 21-6301(a)(13), the State must prove beyond a reasonable doubt that a defendant has or had a mental illness that would permit his or her involuntary commitment under the Care and Treatment Act for Mentally Ill Persons, K.S.A. 59-2945 et seq. It was insufficient for the state to show mental illness by admission of an order from a civil commitment proceeding two years earlier finding, by clear and convincing evidence, that Baumgarner was mentally ill and subject to involuntary commitment. The legislative intent displayed in the language of K.S.A. 2019 Supp. 21-6301(a)(13) has has chosen the mental status of the defendant rather than his or her previous adjudication as an element of the criminal offense. Making the fact of adjudication the element of the crime would be more efficient in the run of cases. But we cannot revise the statutory language in the name of prosecutorial or judicial efficiency. The State had to prove beyond a reasonable doubt that at the time Baumgarner possessed the rifle, he then suffered from a mental illness that would subject him to involuntary commitment or he had previously suffered from such an illness.

City of Shawnee v. Adem, 58 Kan. App. 2d 560, 472 P.3d 123 (2020)(No. 121328, filed 07/31/2020); affirmed City of Shawnee v. Adem, ___ Kan. ___ (No. 121328, filed 08/27/21/2021). A municipal court judge is required to impose the registration requirement prescribed by the Kansas Offender Registration Act (KORA) on a defendant convicted of sexual battery under the Uniform Public Offense Code. The same is true for a district court hearing an appeal from a municipal court on such a charge. KORA itself imposes the duty to register on the offender, rather than the court's order.

State v. Stuckey, ___ Kan.App.2d ___ (unpublished opinion, No. 121231, filed 06/05/2020). Officers arrested Stuckey for criminal trespass, then found drugs on him. He appealed the district court's denial of his motion to suppress. Stuckey went to Central Park Towers in Kansas City to visit Mark Gatson. Gatson let Stuckey in, and they went to Gatson's apartment. The Central Park Towers is a government-operated facility, and has a policy preventing visitors unless they present ID and sign in. The responding officers spoke to the building's manager, Margaret Lysakowski, who said that Stuckey was in the building without authority, and a maintenance man said that Stuckey threated to shoot him after the maintenance man advised Stuckey that he could not enter the building. The issue was whether there was probable cause to arrest Stuckey for criminal trespassing. The Court held the totality of the circumstances within the officers' knowledge was sufficient to warrant a person of reasonable caution in the belief that Stuckey had committed criminal trespass. Both Lysakowski and Wainwright, authorized persons, had told Stuckey he could not enter the building unless he followed the building's rules. But Stuckey entered in defiance of their order, knowing he was not authorized to do so, according to Lysakowski and Wainwright.

State v. Hayes, ___ Kan.App.2d ___ (No. 120417, filed 03/06/2020). Hayes's wife suspected him of being a pervert and asked to check his phone. Hayes let her. Hayes's wife found a video of a woman laying topless on a bed and she called police. Wichita officers were able to identify the woman as one of Hayes's neighbors and found the video was shot without the woman's consent. The State charged Hayes with breach of privacy and the jury convicted him. On appeal, Hayes argued among other things there was insufficient evidence to support the conviction. Hayes alleged the victim had no right of privacy in her own bedroom because her window blinds were up. The Court rejected this argument, finding the video made it abundantly clear that Hayes was right next to the victim's window while filming her. Hayes was "pressed right up against the window and angling the camera toward A.W.'s bed while filming her." He was also not in a common area but was right up next to her residence. And he was concealing himself, therefore his phone was concealed as well. That evidence is sufficient to show breach of privacy.

State v. Downing, ___ Kan. ___ (No. 116629, filed 01/24/20). Downing broke into a rural farmhouse and stole items worth about $1000. Testimony established the property was vacant for about two years, and was just used for storage. The Court of Appeals reversed Downing's burglary of a dwelling conviction, finding insufficient evidence to establish that the farmhouse was a dwelling. State v. Downing, No. 116,629, 2017 WL 6397016 (Kan. App. 2017) (unpublished opinion). The Supreme Court agreed. The statutory definition of "dwelling" requires proof the burgled place was used as a human habitation, home, or residence when the crime occurred, or proof that someone had a present, subjective intent at the time of the crime to use the burgled place for such a purpose. See K.S.A. 2018 Supp. 21-5111(k) (defining "dwelling" as "a building or portion thereof, a tent, a vehicle or other enclosed space which is used or intended for use as a human habitation, home or residence" [Emphasis added.]). And since the State's case lacked that proof, the panel correctly reversed the conviction and vacated the defendant's sentence.

DL Suspension

Walden v. Kansas Dept. of Revenue, ___ Kan.App.2d ___ (No. 121609, unpublished filed 02/05/2021). Walden, who is under 21 years old, was driving drunk (0.158) and bounced his car off of a median, dislodging a wheel and disabling the vehicle. A Sedwick County sheriff's deputy requested Waldent to perform SFSTs and later a breath test. KDOR suspended Walden's license based on his test failure. The district court set aside the suspension. It discarded the field sobriety tests as evidence because Deputy Kite ostensibly did not adequately explain or demonstrate them for Walden and because Walden's performance of them was indistinctly depicted in a video recording of the encounter. The Court of Appeals reversed. The evidence clearly showed that Walden was under 21, smelled of alcohol, had bloodshot and watery eyes, he admitted to drinking, driving and and crashing his car. The Court of Appeals held the SFST results were "superfluous."

Whigham v. Kansas Dept. of Revenue, ___ Kan. ___ (No. 117043, filed 10/09/2020). A driver alleging an informed consent advisory relating to blood alcohol testing is coercive cannot establish that he or she was unduly coerced into consenting to or taking a test if the driver refused the test. The driver thus cannot show prejudice because of an allegedly defective informed consent advisory.

State v Jarvis, 312 Kan. ___, Syl. ¶ 1, ___ P.3d ___ (No. 119116, filed 10/09/2020) On judicial review under K.S.A. 2019 Supp. 8-1020(p) of a hearing officer's order suspending a driver's license, a court may consider any constitutional issue, including the lawfulness of the law enforcement encounter. Martin v. Kansas Dept. of Revenue, 285 Kan. 625, 176 P.3d 938 (2008), overruled on other grounds by City of Atwood v. Pianalto, 301 Kan. 1008, 350 P.3d 1048 (2015) was legislatively overuuled by 2013 amendments to K.S.A. 8-1020. The Court also holds that, under K.S.A. 2019 Supp. 8-1020(o) through (q), a court may set aside a driver's license suspension order if the driver meets the burden of establishing the encounter was unlawful.

Brungardt v. Kansas Dept. of Revenue, ___ Kan.App.2d ___ (No. 120409, filed 06/12/2020). Brungardt's license was suspended for driving under the influence of alcohol when he failed a breath test. He challenged the suspension, claiming the notice-and-certification form the officer provided was invalid because it used an electronic, not handwritten, signature. When presented with this claim, the district court found the process used by the breath-test machine for creating and affixing the officer's electronic signature violated Kansas implied-consent statutes. In particular, the court found the officer signed the form when he initially created the image of his electronic signature, not when that signature was affixed to the challenged form. The Court of Appeals reversed, holding that"signing" is broader than the physical act of handwriting a person's name. A signature is an indication by any distinctive mark— including a previously created image of an electronic signature—for the purpose of communicating and recording a person's authorization, certification, agreement, or identity. "Signing" is merely the act of affixing that signature.

Strickert v. Kansas Dept. of Revenue, ___ Kan.App.2d ___ (No. 120544, filed 03/13/2020). Garden City police officers stopped Strickert after he left a bar and they found he was under the influence. Strickert appealed his DL suspension order and alleged officers did not have reasonable suspicion to stop him or probable cause to arrest him. The Court of Appeals held there was reasonable suspicion when Strickert failed to signal a turn until he was stopped at an intersection, which violates the requirement to signal a turn at least 100 feet before doing so. K.S.A. 8-1548. See State v. Greever, 286 Kan. 124, 138-41, 183 P.3d 788 (2008). After the stop, there was reasonable suspicion for further detention based on the odor of alcohol as well as Strickert's watery and bloodshot eyes, admission to consuming alcohol, and his commission of a traffic infraction.

DUI

City of Kingman v. Ary, ___ Kan. ___ (No. 114413, filed 11/20/2020) and State v. Heim, ___ Kan. ___ (No. 115980, filed 11/20/2020). Applying State v. Perkins, 310 Kan. 764, 449 P.3d 756 (2019), to the circumstances of these cases, the good-faith exception to the exclusionary rule applies and allowed the district court to consider the results of a blood test for blood alcohol content even though the Kansas Supreme Court would later hold that K.S.A. 2013 Supp. 8-1025 was unconstitutional.

State v. Myers, ___ Kan.App.2d ___ (No. 122046, filed 10/02/2020). Jessica Lynn Myers was charged with felony driving under the influence (DUI), third offense. After Myers waived her preliminary hearing and pled not guilty, she moved to strike her two prior Missouri convictions for driving while intoxicated (DWI) from being used to elevate her current DUI charge to a felony. Myers claimed the Missouri DWI statute was broader than Kansas' DUI statute and therefore failed the comparability analysis set out in K.S.A. 2019 Supp. 8-1567(i)(3) and (j). The district court granted Myers' motion, and the State timely filed this interlocutory appeal. The district court did not err when it held Myers' two prior Missouri DWI convictions could not be used to elevate her current charge to a felony DUI. K.S.A. 2019 Supp. 8-1567(j)(3) invites impermissible judicial fact-finding in violation of Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), by giving courts broad discretion to determine whether a defendant committed the out-of-jurisdiction offense in a manner similar enough to K.S.A. 2019 Supp. 8-1567. Under Apprendi, and the categorical approach in State v. Dickey, 301 Kan. 1018, 350 P.3d 1054 (2015), a sentencing court cannot engage in judicial fact-finding beyond the existence of a prior conviction to enhance the defendant's sentence. Nothing in the plain language of K.S.A. 2019 Supp. 8-1567(j)(2) and (3) prevents courts from following the identical-to-or-narrower-than rule in State v. Wetrich, 307 Kan. 552, 412 P.3d 984 (2018). Applying the bright-line rule established in Wetrich standardizes the classification of prior out-of-state convictions to be counted only if the elements of the out-of-state statute are identical to or narrower than Kansas' DUI statute.

State v. Patton, ___ Kan.App.2d ___ (No. 120434, filed 09/11/2020). Defendant was convicted of one count of felony driving under the influence (DUI). At sentencing, the district court found this was Defendant's fourth or subsequent DUI conviction and sentenced him to 12 months in jail. Defendant appealed, arguing that the district court erred in using two of his prior out-of-state DUI convictions to enhance his sentence. The Court of Appeals rejected this argument. Patton's criminal history worksheet showed seven prior DUI convictions: an April 1987 Kansas conviction, two June 2001 Kansas convictions, a January 2003 Kansas conviction, a January 2003 Oklahoma conviction, a January 2007 Missouri conviction, and an August 2010 Kansas conviction. Patton claimed the 2003 Oklahoma DUI conviction and a 2007 Missouri DUI conviction should not count because, on the date he committed his current DUI offense, the elements of those out-of-state DUI statutes were broader than the offense outlined in K.S.A. 2015 Supp. 8-1567(a)(3). The legislative history of K.S.A. 2018 Supp. 8-1567 reflects the Legislature's intent that prior DUI convictions from Missouri and Oklahoma be considered conduct that is comparable to the conduct prohibited under K.S.A. 2018 Supp. 8-1567 for purposes of enhancing the sentence for a current DUI conviction in Kansas. The plain language in the amendment to K.S.A. 8-1567 reflects the Legislature's intent to disregard the Wetrich "identical or narrower" rule used in Chapter 21 when it comes to DUIs. "The amendment, in that sense, clarified the meaning of the existing statutory language rather than changing it, reflecting a legislative effort to inoculate K.S.A. 8-1567 against any argument that Wetrich should govern by analogy." Mejia, 58 Kan. App. 2d at 238.

Fleeing & Eluding

State v. Sherman Norman Jenkins, ___ Kan. ___ (No. 118120, filed 01/13/20). (Summary by the KBA). The Supreme Court affirmed Jenkins' Shawnee County convictions for first-degree felony murder, two counts of aggravated battery, two counts of felony fleeing and eluding police, one count of theft, one count of driving without tail lamps, and one count of driving while suspended. At trial, the district court judge admitted into evidence recordings of jail calls made using Jenkins' unique personal identification number. On appeal, Jenkins argued this was a reversible error because the recordings were not properly authenticated. The Court held admission of the calls was not error and announced a seven-factor test for authenticating an audio recording outlined in State v. Williams, 235 Kan. 485, 681 P.2d 660 (1984), is no longer controlling in Kansas. Instead, the Court held audio recordings are 'writings' under the Kansas Rules of Evidence and can be authenticated by any evidence sufficient to support a finding the writing is what its proponent claims. Jenkins also argued one of the means of the felony fleeing and eluding statute, which renders fleeing and eluding a felony if the defendant commits five or more moving violations while fleeing, was unconstitutionally vague. He argued that a typical person would not understand the conduct made illegal and that the statute would permit arbitrary enforcement. The Court rejected these assertions, holding administrative regulations defining "moving violations" provide fair notice of what conduct is illegal.

Sentencing

State v. Smith, ___ Kan. ___ (No. 115321 & 22, filed 01/31/2020). Smith pleaded guilty in separate cases to two counts of refusing to submit to a test to determine the presence of alcohol or drugs, driving under the influence and two counts of driving while a habitual violator. On appeal, Smith argued that the district court lacked jurisdiction to render the judgments. The Court of Appeals dismissed the appear for lack of jurisdiction; K.S.A. 22-3602(a). The Supreme Court agreed. Under K.S.A. 22-3602(a), a Kansas appellate court does not have jurisdiction to review a defendant's conviction from a guilty or nolo contendere plea. K.S.A. 22-3602(a) makes clear that, regardless of this prohibition, a defendant may still file a motion in the district court in accordance with the directives outlined in K.S.A. 60-1507, and appellate courts have jurisdiction to review a defendant's appeal from a ruling on such a motion. But the statute limits an appeal from a guilty plea and presumptive sentence.

Immigration

Department of Homeland Security v. Regents of Univ. of Cal., ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 18-587, filed 06/18/2020). In a 5-4 decision, the United States Supreme COurt holds that DHS’s rescission of Deferred Action for Childhood Arrivals (DACA) is reviewable under the Administrative Procedures Act, and that DHS’s decision to rescind DACA was arbitrary and capricious under the APA because DHS did not provide adequate reasons for its decision.

Kansas v. Garcia, 589 U.S. __, 140 S. Ct. 791, 206 L. Ed. 2d 146 (2020). (No. 17-834, 03/03/2020). The Immigration Reform and Control Act does not preempt states from using any information entered on or appended to a federal Form I-9, including common information such as name, date of birth, and Social Security number, in a prosecution of any person (citizen or alien) when that same information also appears in non-IRCA documents, such as state tax forms, leases and credit applications. The Kansas Supreme Court's decision (306 Kan. 1107, 401 P. 3d 159) to the contrary is reversed. The Kansas Identity Theft statute, K.S.A. 21–6107, is not preempted by the Immigration Reform and Control Act.

Medical Expenses

Stormont-Vail Healthcare, Inc. v. Board of County Commissioners for Shawnee County, Kansas, ___ Kan.App.2d ___ (No. 120345, filed 12/11/2020). Jesse Dimmick took hostages in Wamego and was negligently shot in the back by the TPD. All law enforcement agencies pointed to each other for Dimmick's medical expenses, which amounted to about $42,000. The district court held that Shawnee County should pay the medical expenses. Shawnee County appealed. The Court of Appeals reversed, holding the undisputed facts were insufficient to support summary judgment against Shawnee County and the district court impermissibly drew inferences to reach that result. Stormont-Vail Healthcare v. Board of Shawnee County Comm'rs (Stormont-Vail I), No. 112,811, 2016 WL 2772859, at *1 (Kan. App. 2016) (unpublished opinion). After remand, the KHP was added, but was granted summary judgment based on the statute of limitations. Later the district court held that KHP should be liable because it had operational control of the coordinated interagency exercise. Stormont Vail appealed, but did not appeal the earlier ruling granting KHP summary judgement. The Court of Appeals reiterated what it surmised in Stormont Vail I: "In a coordinated police action involving multiple law enforcement agencies, the agency with "operational control" has the obligation under K.S.A. 22-4612 to pay for medical treatment requested during the action for an injured person taken into custody." In this case, that was the KHP. University of Kansas Hospital Authority v. Bd. of County Comm'rs of Franklin County, Kansas, 58 Kan.App.2d 367 (No. 120472, filed 06/26/2020). Genius criminal was arrested in Ottawa and bonded out. The next day, an officer saw him speeding through town without headlights and gave pursuit. A Franklin County deputy found a crashed vehicle, fully engulfed in flames, in a ditch near the intersection of US-59 and Stafford Road. The driver remained in the hospital for 10 days. During that time, he was placed on a police-hold by Wyandotte County for several outstanding warrants in that jurisdiction and guarded by Wyandotte County officers. Neither the City of Ottawa nor Franklin County placed a hold on him while he was in the hospital. Genius criminal had no insurance and the total amount billed by KU hospital for his treatment and care was $235,498.22. At the time, the Medicaid reimbursement rate was 30.5% of this billed amount, for a total of $71,826.95. The University of Kansas Hospital Authority (the Hospital) later filed suit against the City of Ottawa (the City) and Franklin County's Board of County Commissioners (the County), alleging one or both of these agencies were required to pay the man's hospital bill under K.S.A. 22-4612(a). The district court determined, as a matter of law, that the driver was in the City's custody under K.S.A. 22-4612(a) when the decision to obtain medical treatment was made. The district court explained that, but for the driver's injuries, the Ottawa police officers would have been required to arrest him after the car chase—as a result of his fleeing and eluding those officers. The court therefore granted summary judgment in the Hospital's favor against the City. But because the County deputies were not involved in the chase, did not observe the driver committing any felonies, and did not know who the driver was, the court granted summary judgment to the County on the Hospital's remaining claim. The city appealed and KU cross-appealed. The Court of Appeals held the district court erred when it granted summary judgment in favor of the Hospital. Although all parties presented this case as one that could be decided on the stipulated facts, the parties' stipulation does not resolve the two central questions here—whether the driver was "stopped" within the meaning of K.S.A. 8- 2104(d) and, if not, whether the driver was otherwise in the City's custody when he was taken to the Hospital. The case must be remanded to resolve these factual disputes.

Miscellanous

Georgia v. Public Resource Org., Inc., ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 18-1150, filed 04/27/2020). The Office Code of Georgia Annotated (OCGA) annotations are ineligible for copyright protection. Because legislators, like judges, have the authority to make law, it follows that they, too, cannot be “authors.” And, as with judges, the government edicts doctrine applies to whatever work legislators perform in their capacity as legislators, including explanatory and procedural materials they create in the discharge of their legislative duties. "[N]o one can own the law. “Every citizen is presumed to know the law,” and “it needs no argument to show . . . that all should have free access” to its contents. Nash v. Lathrop, 142 Mass. 29, 35-6, 6 N. E. 559, 560 (1886).

Restitution

State v. Henry, ___ Kan.App.2d ___ (No. 119895, filed 02/28/2020). Henry, a former armored truck driver, stole $78,315 from Quick Trip deposits. The individual takings occurred between April and May 2016 and varied from $920 to $13,520. Henry was convicted of felony theft and ordered to pay restitution. The district court ordered Henry to pay $78,315 in restitution in minimum monthly payments of $150. It also gave Henry's probation supervisor the discretion to adjust the monthly payment depending on Henry's employment status. Henry argued that he should have been convicted of 12 lower severity level thefts and they were supported by insufficient evidence, so his conviction should be reversed. He also claims his restitution is unworkable. The Court of Appeals rejected both arguments. It found a single incriminating impulse, so the single larceny doctrine from State v. Grissom, 251 Kan. 851, Syl. ¶ 9, 840 P.2d 1142 (1992) applied. Additionally, K.S.A. 2019 Supp. 21-6604(b)(1) provides that the district court "shall order the defendant to pay restitution, which shall include, but not be limited to, damage or loss caused by the defendant's crime, unless the court finds compelling circumstances that would render a plan of restitution unworkable." Under K.S.A. 2019 Supp. 21-6604(b)(1), "restitution is the rule and a finding that restitution is unworkable is the exception." State v. Alcala, 301 Kan. 832, 840, 348 P.3d 570 (2015). Henry bears the burden of coming forward "with evidence of 'compelling circumstances' that render the restitution plan unworkable." 301 Kan. at 840. He failed to show that in this case. In all circumstances, the district court should keep in mind the ultimate goals of restitution: compensation to the victim and deterrence and rehabilitation of the guilty, and if a defendant is ordered to pay full or partial restitution, K.S.A. 2019 Supp. 21- 6608(c)(7) specifically allows for probation to be continued indefinitely as long as the amount of restitution ordered has not been paid.

State v. Roberts, ___ Kan. ___ (No. 120377, filed 02/21/2020). Roberts pleaded guilty to eight counts of burglary and two counts of theft. As part of the sentence, the district court ordered her to pay $50,407.86 in restitution, but did not set any terms. Roberts appeals, claiming that the district court's failure to establish a payment plan for her restitution renders her sentence illegal. The Court of Appeals agreed. K.S.A. 2018 Supp. 21-6604(b)(2) refers to a "plan established by the court for payment of restitution." That language does not merely refer to a court's order of an amount of restitution but shows legislative intent that the court establish a payment plan when it orders restitution.

Sentencing

City of Salina v. Matthews, ___ Kan.App.2d ___ (No. 121721, unpublished, filed 02/28/2020, see also No. 121728). House arrest is a discretionary sentence and the judge in this case did not abuse his discretion denying 60 days of house arrest on DWS fourth offense sentences. While the defendant may have been a good candidate for house arrest because he was responsible for caring for his wife and grandchildren, he suffered from chronic migraines, chronic depression, and PTSD, and frequently received treatment from the Veterans Administration, the district judge did not abuse his discretion by explaining that house arrest was for defendants who did not have a history of repeat offenses. Matthews sentence was within statutory limits and was not the result of partiality, prejudice, oppression, or corrupt motive.

Title 7

Altitude Express v. Zarda, and Bostock v. Clayton County, Georgia, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (Nos. 17-1618 & 17-1623, filed 06/15/2020). Consolidated cases ask whether Title VII protects against discrimination on the basis of sexual orientation. Supreme Court holds that it does. Sexual orientation is sex discrimination.

Traffic and vehicles

Espinoza v. Kan. Dept. of Revenue, ___ Kan.App.2d ___ (No. 120662, unpublished, filed 05/15/2020). Espinoza recieved a lifetime suspension based on a second breath test refusal by someone with a commercial driver's license. He alleged the suspension was wrong because his minibike was a motorized bicycle rather than a motor vehicle. The facts indicated the vehicle had 2.5 horsepower, 80 cc, had a top speed of 24 miles per hour and had a single speed transmission. The Court of Appeals held that regardless of whether the mini-bike met the definition of a motorize bicycle, for the purposes of K.S.A. 2018 Supp. 8-2,142(c), Espinoza's mini-bike squarely fits within the UCDLA's definition of a "noncommercial motor vehicle.



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Revised October 17, 2021

John J. Knoll