January 1, 2008 to December 31, 2008 (or thereabouts)
Quick Links to prior year lists.
Full text of United States Supreme Court decisions: http://supct.law.cornell.edu/supct/
Full text of 10th Circuit decisions: http://www.kscourts.org/ca10/
Full text of Kansas Appellate decisions: http://www.kscourts.org/Cases-and-Opinions/opinions/
Wellhausen v. University of Kansas, ___ Kan.App.2d ___, ___ P.3d ____ (No. 98,663, filed 8/8/08). KU had no duty to protect or warn of known, obvious dangers. Eric Wellhausen climbed out the window of his 7th Story room in Oliver Hall to stand on a two-foot wide concrete ledge about 5 feet below the window. He fell and died, with a bac of 0.16. The district court properly granted summary judgment based on discretionary act immunity under K.S.A. 75-6104(e), and design immunity under K.S.A. 75-6104(m).
http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2008/20080808/98663.htm
Amundsen v. Jones, ___ F.3d ___ (10th Cir. No. 06-4310, filed 7/15/2008). A Utah deputy saw a vehicle weaving between lanes and change lanes without signaling. The deputy stopped the vehicle, and noticed the driver had constricted pupils. The expiration date on the registration did not match the one on the license plate. The deputy asked the driver to step out to note this difference. While getting out the driver stumbled. The deputy then administered roadside sobriety tests, then arrested the driver for DUI. She transported her to the station where breath, urine and blood were collected. All were negative for alcohol. The driver was charged, but all charges were later dismissed. The driver then sued the deputy for an unreasonable search and seizure, as well as violation of her due process and equal protection rights. The district court denied summary judgment in part, reasoning that a jury could find that the deputy lacked reasonable suspicion and the sobriety tests exceeded the scope of the stop. The Circuit reversed, noting the issue is whether an improper lane change, standing alone, is sufficient to create reasonable suspicion of intoxication. The Circuit held that repeated weaving, compared with isolated weaving, will support a stop, distinguishing the de minimis weaving at issue in United States v. Gregory, 79 F.3d 973, 978 (10th Cir. 1996)(isolated incident of crossing into another lane) and United States v. Lyons, 7 F.3d 973, 976 (10th Cir. 1993)(weaving within its lane, without more, is not reasonable suspicion for a stop). Since there was reasonable suspicion of DUI, the roadside sobriety tests did not exceed the reasonable scope of the stop, and later toxicology testing was consensual, Therefore, the district court should have granted the deputy summary judgment.
http://ca10.washburnlaw.edu/cases/2008/07/06-4310.pdf
Exxon Shipping Co. v. Baker, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 07-219, filed 6/25/08). Although the jury awarded $5 billion in punitive damages against Exxon (reduced on appeal to$2.5 billion), the amount was still excessive and the court limits punitive damages to equal compensatory damages, $500 million.
http://supct.law.cornell.edu/supct/html/07-219.ZO.html.
Wilkins v. DeReyes, ___ F.3d ___ (10th Cir. No. 06-2245 and 06-2260, filed 6/13/2008). Two gang members sued Albuquerque detectives claiming they were maliciously prosecuted for murder based on fabricated evidence. The gang members claimed the detectives coerced fellow gang members into implicating the plaintiffs in a quadruple homicide. Both plaintiffs were prosecuted, but both cases resulted in a mistrial due to a hung jury. The defendants claimed the plaintiffs' action was barred by the statute of limitations and qualified immunity. The district court denied their motion and defendants appealed. The 10th Circuit affirmed, holding the facts alleged by the plaintiffs established malicious prosecution resulting from an alleged unreasonable seizure. Although arrested pursuant to legal process (arrest warrants), a cause of action for malicious prosecution (as opposed to false arrest or false imprisonment) will lie if a plaintiff can prove (1) defendant caused the plaintiff's continued confinement or prosecution (2) the original action terminated in favor of the plaintiff; (3) no probable cause supported the original arrest, continued confinement or prosecution; (4) the defendant acted with malice; and (5) the plaintiff sustained damages. The arrest warrants were based solely on the alleged coerced statements, and if those statements were false, there was nothing left in the affidavits to support probable cause. Although later information added to probable cause, it was not included in the affidavits for arrest warrants and will not be considered by the Court. Also, cases are favorably terminated by the formal abandonment of the proceedings by the public prosecutor combined with judgment by the prosecutor the case could not be proven beyond a reasonable doubt. The law was clearly established that probable cause depends on reasonably trustworthy information, and that false statements in an affidavit violate the Fourth Amendment.
http://ca10.washburnlaw.edu/cases/2008/06/06-2245.pdf
Heston v. City of Salinas, C 05-03658 JW, U.S. District Court, Northern District of California (San Jose, 6/6/08). Taser International Inc., the largest stun-gun maker, lost a $6.2 million jury verdict over the death of a California man who died after police shot him multiple times with the weapon. The defeat is the first for Taser in a product- liability claim. A San Jose, California, jury said Taser had failed to warn police in Salinas, California, that prolonged exposure to electric shock from the device could cause a risk of cardiac arrest. The jury awarded $1 million in compensatory damages and $5.2 million in punitive damages to the estate of Robert Heston, 40, and his parents. The jury cleared the police officers of any liability. Taser previously won two trials, one over claims by a police officer injured in a training accident and the other involving a death in custody. Taser has settled at least 10 cases involving injuries to police officers during training, company lawyer Doug Klint told Bloomberg News last year. Taser said it will appeal the verdict. The compensatory damage verdict will be reduced by the jury's finding that Heston was 85 percent responsible for his death. Heston died on Feb. 20, 2005, after his father had called Salinas police because his son was "acting strangely,'' and seemed to be on drugs," according to the lawsuit complaint. Salinas police shot Heston multiple times with the stun-gun, continuing to discharge their Tasers into him until he stopped moving, the lawsuit claims. Heston went into cardiac arrest and died. His parents sued Taser, alleging failure to warn of the dangers of the weapon, and Salinas police officers, claiming excessive force. The jury "exonerated the police because they said the police didn't know repeated exposures could kill someone." Use of the Taser on Heston didn't cause his death. Heston fit the well established symptom pattern for methamphetamine intoxication and associated excited delirium.
Engquist v. Oregon Dept. Of Agriculture, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 07-474, filed 6/9/2008). Petitioner Engquist, an Oregon public employee, filed suit against respondents--her agency, her supervisor, and a co-worker--asserting, inter alia, claims under the Equal Protection Clause: She alleged she had been discriminated against based on her race, sex, and national origin, and she also brought a so-called "class-of-one" claim, alleging that she was fired not because she was a member of an identified class (unlike her race, sex, and national origin claims), but simply for arbitrary, vindictive, and malicious reasons. The Supreme Court held the class-of-one theory of equal protection does not apply in the public employment context.
http://www.law.cornell.edu/supct/html/07-474.ZS.html
Archuleta v. Wagner, ___ F.3d ___ (10th Cir. No. 07-1108, filed 04/29/2008). Jail deputy was not entitled to qualified immunity for performing a strip search of a woman jailed on an invalid warrant for someone else. Archuleta was arrested on a warrant for "DV-harassment"meant for Phyllis Rivera, a lesbian Hispanic female, 42-42 years old. Archuleta, a 46-year old mother of nine, was arrested after a traffic stop. She was frisked at the scene, then twice more at the jail, before defendant strip-searched her. Archuleta claimed mistaken identity, and the defendant at one point allegedly said "this isn't her," when Archuleta did not have the moles and tattoos identified in the jail's computer files, and also allegedly stated that she knew Archuleta was innocent. Archuleta began lactating while being force to stand naked and defendant belittled her and ordered her to put her arms down when she attempted to cover up. Finding no reasonable suspicion to suspect defendant was armed and that she would not be put in general population, the Circuit held that a strip search violated Plaintiff's constitutional rights, those rights had been clearly established since at least January 24, 1991, and defendant was not entitled to qualified immunity.
http://ca10.washburnlaw.edu/cases/2008/04/07-1108.pdf
Potts v. Board of County Commissioners of Leavenworth County, Kansas, ___ Kan.App.2d ___, ___ P.3d ___ (No. 97828, filed 2/22/2008). An elderly lady fell and refused medical treatment. She died two weeks later. Her heirs sued the county and the EMTs alleging they had a duty under their protocols to transport the elderly lady against her will and in view of a durable power of attorney. The district court granted summary judgment. The Court of Appeals affirmed, applying the public duty doctrine. It held the EMTs did not owe a special duty based on the County's protocols.
http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2008/20080222/97828.htm
Ali v. Fed. Bureau of Prisons, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 06-9130, filed 1/22/2008). In a case involving the scope of 28 U.S.C. section 2680, which carves out certain exceptions to the United States' waiver of sovereign immunity for torts committed by federal employees, the Court rules that section 2680's broad phrase "any other law enforcement officer" covers all law enforcement officers, and not just law enforcement officers enforcing customs or excise laws. In this case, the prisoner plaintiff sued correctional officers who allegedly lost plaintiff's property when transferring him from one prison to another.
http://supct.law.cornell.edu/supct/html/06-9130.ZO.html
Clark v. Edmunds, ___ F.3d ___ (10th Cir. No. 07-4029, filed 1/23/2008). The district court properly granted the Sheriff summary judgment on a 14th amendment excessive force claim. The Sheriff was attempting to take plaintiff's daughter into protective custody based on a suicide threat. Plaintiff turned towards the Sheriff which he interpreted as a threatening action, and he pushed her out of the way. She fell over some furniture and alleged significant, permanent and disabling injuries. The 10th Circuit held the Sheriff's actions were reasonable based on the circumstances, and did not shock the conscience of the court, applying County of Sacramento v. Lewis, 523 U.S. 833 (1998). It held the claim was properly considered under the 14th amendment since the sheriff was not intending to take the plaintiff into custody.
http://ca10.washburnlaw.edu/cases/2008/01/07-4029.pdf
Estate of Larsen v. Murr, ___ F.3d ___ (10th Cir. No. 06-1094, filed 1/2/2008). Officers responded to a late-night 911 call from Larsen who said he was going to "kill someone or himself." Police arrived and found Larsen on the front porch holding a large knife with a blade about one-foot long. Larsen failed to comply with four commands to drop the knife, then raised it over his shoulder and took a step or steps towards an officer on the sidewalk six steps below the front porch. The officer fired twice, hitting Larsen in the chest and killing him. Larsen's estate sued the Denver Police for excessive force and failure to train. The district court granted the defendants summary judgment. The Circuit affirmed, quoting a New York case stating that "a reasonable officer need not await the 'glint of steel' before taking self-protective action; by then it is 'often . . . too late to take safety precautions.'"
http://ca10.washburnlaw.edu/cases/2008/01/06-1094.pdf
State v. Hawkins, ___ Kan.App.2d ___, ___ P.3d ___ (No. 97,657, filed 7/28/2008). Off-duty officers were working at a restaraunt in uniform. They responded to a fight in the parking lot. Hawkins approached one of the officers and shot at him, then ran. Officers gave chase and eventually shot Hawkins in the back. Hawkins was convicted of aggravated assault of and officer both as an individual and as an officer, and criminal possession of a firearm. Hawkins alleges the court's response to a jury question was improper, and alleges the convictions were multiplicitious. The court, responding to a jury question about whether the officer had to be the target of the assault (as opposed to a car), said, "To be guilty of aggravated assault someone's act must have been intentional. The intentional act must have placed another in reasonable apprehension of immediate bodily harm." The Court of Appeals reversed, holding that this explanation eliminated the general intent element of the crime - to place someone in reasonable apprehension of immedate bodiy harm. It affirmed on the multiplicity issue, finding that Hawkins first pointed and fired a gun toward the officer as he and several others stood outside in front of the crowded restaurant. Shortly thereafter, the officers chased Hawkins down the street, repeatedly identifying themselves as police officers as they commanded Hawkins to stop. As the chase continued, Hawkins turned around and acted as if he was going to shoot at one of the officers. Judge Leben dissented on the issue of whether the district court must resentence the defendant after one of the underlying convictions has been reversed.
http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2008/20080725/97657.htm
Kennedy v. Louisiana, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 07-343, filed 6/25/08). Patrick Kennedy raped his then-8-year-old stepdaughter. A jury convicted him and sentenced him to death under a state statute authorizing capital punishment for the rape of a child under 12 years of age. See La. Stat. Ann. §14:42 (West 1997 and Supp. 1998). The Court holds the statute unconstitutional, and declares that imposing the death penalty where the crime did not result, and was not intended to result, in the death of the victim violates the Eighth and Fourteenth Amendments.
http://supct.law.cornell.edu/supct/html/07-343.ZO.html
Baze v. Rees, ___ U.S. ___, 128 S.Ct. 1520, ___ L.Ed.3d ___ (No. 07-5439, filed 4/16/2008).
Kentucky's three-drug lethal injection protocol does not violate the Eighth Amendment.
http://supct.law.cornell.edu/supct/search/display.html?terms=baze&url=/supct/html/07-5439.ZO.html
United States v. Wittig, ___ F.Supp. 2d ___ (No. 03-40142-JAR, filed 6/12/08). There are three obstacles to issuance of a Rule 17(c) subpoena: relevancy, admissibility, and specificity. Specificity is the most difficult hurdle to overcome. "The specificity requirement ensures that Rule 17(c) subpoenas are used only to secure for trial certain documents or sharply defined groups of documents." "The specificity requirement also prevents the moving party from using the Rule 17(c) subpoena as a license for what the Supreme Court . . . decried as a 'fishing expedition to see what may turn up.'"
http://www.ksd.uscourts.gov/opinions/0340142-929.pdf
Martin v. Kansas Dept. of Revenue, ___ Kan. ___, ___ P.3d ___ (No. 94,033, filed 2/1/2008)(affirming Martin v. Kansas Department of Revenue, 36 Kan.App.2d 561, 142 P.3d 735 (2006)). Reasonable suspicion for a stop is not an issue to be determined in an administrative driver's license suspension proceeding for failure of a breath test. The exclusionary rule does not apply to a administrative drivers license suspension hearing, even if the stop was illegal. The deterrent effect of the rule would be minimal and cannot outweigh the remedial imperative of preventing alcohol-and/or drug impaired drivers from injury or killing themselves or others.
http://www.kscourts.org/Cases-and-Opinions/opinions/supct/2008/20080201/94033.htm
State v. Dukes, ___ Kan.App.2d ___, ___ P.3d ___ (No. 96,563, filed 1/18/2008). Documents showing the driving record of a defendant certification or calibration of a breath-test instrument or certification of the instrument operator do not constitute testimonial evidence under Crawford v. Washington, 541 U.S. 36, 153 L. Ed. 2d 177, 124 S. Ct. 1354 (2004), and, if otherwise admissible, may be offered without an accompanying witness for cross-examination. Also, if a court imposes more than a minimum fine, it must make explicit findings pursuant to K.S.A. 21-4607(3) showing it has considered the burden of the fine given the defendant's financial circumstances. See State v. Shuster, 17 Kan.App.2d 8, Syl. ¶ 2, 829 P.2d 925 (1992).
http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2008/20080118/96563.htm
Orr v. City of Albuquerque, ___ F.3d ___ (10th Cir. No. 07-2105, filed 7/8/08)(Orr II). Plaintiffs presented enough evidence to show that Defendants' asserted reasons for applying a sick leave first and disallowing use of compensatory time policy was a pretext for discrimination and violated their rights under the Pregnancy Discrimination Act, 42 U.S.C. § 2000e(k). Evidence of restoring another similarly situated individual's sick leave in the past was admissible to show contradictory behavior that seems to suggest some degree of confusion and mismanagement. See Salguero v. City of Clovis, 366 F.3d 1168 (10th Cir. 2004).
http://ca10.washburnlaw.edu/cases/2008/07/07-2105.pdf
Seegmiller v. LaVerkin City, Utah, ___ F.3d ___ (10th Cir. No. 07-4096, filed 6/10/2008). A city's decision to privately reprimand a police officer for her off-duty sexual conduct was reasonably related to police department policies and did not violate the constitution. Officer Johnson attended an out-of-town training seminar paid for in part by the City, and had an affair with another officer from a different department. Her angry, soon to be ex-husband (who was subject to a restraining order at some point), first alleged she was raped, but after learning the sex was consensual, became incensed by the City’s failure to discipline her for this conduct and also falsely accused her of having an affair with the City’s police chief, Kim Seegmiller. The City Council placed both Johnson and Seegmiller on administrative leave while it independently investigated the allegations. Washington County also asked Ms. Johnson to step down from her SWAT Team position until the matter was cleared up. News of the matter appeared on the front page of the local newspaper and was broadcast on radio and television stations throughout the state. Four days into the forced leave, the angry, soon to be ex-husband recanted his allegations about Johnson's alleged affair with Chief Seegmiller, but they remained on leave until the next council meeting. In the meantime, the department's own investigation confirmed Johnson's affair with the other officer and resulted in a reprimand for her failure to keep her private "unsullied as an example to all and [to] behave in a manner that does not bring discredit to [the officer] or [the] agency.” Johnson alleged the discipline was a substantive due process violation and violated her fundamental liberty interest “to engage in a private act of consensual sex.” Rejecting a "shocks the conscious" test, the 10th Circuit, using rational basis review, held that Johnson failed her burden to show the governmental act complained of does not further a legitimate state purpose by rational means. "It is well-settled that a police department may, “in accordance with its well-established duty to keep peace, [place] demands upon the members of the police force . . . which have no counterpart with respect to the public at large.” Kelley v. Johnson, 425 U.S. 238, 245 (1976); see also Shawgo v. Spradlin, 701 F.2d 470, 483 (5th Cir. 1983) (holding, under rational basis review, that a police department’s prohibition of off-duty dating and cohabitation did not violate police officer’s rights). The Court also rejected Johnson's "negligent breach of privacy," claim because there was no evidence a city official made the allegations a matter of public record or discussion.
http://caselaw.lp.findlaw.com/data2/circs/10th/074096p.pdf
Zoellner v. Civil Service Board of Leavenworth County, ___ Kan.App.2d ___, ___ P.3d ___ (No. 98037, filed 5/16/08). The sheriff fired a deputy that shot a dog several times, concluding the force was excessive. The civil service board affirmed the termination, but held the former employee should be transferred to a comparable position in the Jail Division. The sheriff appealed to district court court, arguing that the Board had exceeded its authority. The district court granted the sheriff summary judgement. The Court of Appeals affirmed, holding that pursuant to K.S.A. 19-4327(d)(3), when a county civil service board sustains a sheriff's dismissal of a deputy, it does not have the authority to require the sheriff to rehire the deputy, create a position for the dismissed deputy, or force another entity to hire the dismissed deputy. "Department" does not mean "different division" in the same sheriff's office.
http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2008/20080516/98037.htm
Giles v. California, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 07-6053, filed 6/25/08). Admission of a dead domestic violence victim's statements against her killer that were made three weeks prior to her murder and were unconfronted violated the Defendant's right of confrontation under Crawford v. Washington, 541 U. S. 36, 53–54 (2004). California appellate court holdings that Crawford recognized a doctrine of forfeiture by wrongdoing are incorrect. "Domestic violence is an intolerable offense. . . [b]ut for that serious crime, as for others, abridging the constitutional rights of criminal defendants is not in the State’s arsenal." "We decline to approve an exception to the Confrontation Clause unheard of at the time of the founding or for 200 years thereafter."
http://supct.law.cornell.edu/supct/html/07-6053.ZO.html
State v. Scott, ___ Kan.App.2d ___, ___ P.3d ___ (No. 96879, filed 2/22/2008). Defendant was charged with sale of cocaine within 1000 feet of a school. The confidential informant and the police officer were the only witnesses against the defendant. The officer either didn't tape the transaction or the taping device failed. Defendant denied selling cocaine to the CI and wished to impeach him with a pending forgery investigation in which the CI allegedly forged the defendant's checks. The Court of Appeals held that the forgery evidence should have been admitted. Even though the CI had not been convicted of the forgery and it would have been inadmissible for general impeachment under K.S.A. 60-421, it should have been admitted to show the CI's partiality, bias, motive or interest in the outcome.
http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2008/20080222/96879.htm
State v. Dukes, ___ Kan.App.2d ___, ___ P.3d ___ (No. 96,563, filed 1/18/2008). Documents showing the driving record of a defendant certification or calibration of a breath-test instrument or certification of the instrument operator do not constitute testimonial evidence under Crawford v. Washington, 541 U.S. 36, 153 L. Ed. 2d 177, 124 S. Ct. 1354 (2004), and, if otherwise admissible, may be offered without an accompanying witness for cross-examination. Also, if a court imposes more than a minimum fine, it must make explicit findings pursuant to K.S.A. 21-4607(3) showing it has considered the burden of the fine given the defendant's financial circumstances. See State v. Shuster, 17 Kan.App.2d 8, Syl. ¶ 2, 829 P.2d 925 (1992).
http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2008/20080118/96563.htm
State v. Yrigolla, ___ Kan.App.2d ___, ___ P.3d ___ (No. 97,899, filed 1/25/2008). K.S.A. 21-4619 is the specific statute governing expungement of arrest and diversion records and controls over the more general K.S.A. 22-2410 governing expungement of arrest records without conviction. K.S.A. 22-4619 has a 5-year waiting period, while 22-2410 does not.
http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2008/20080125/97899.htm
District of Columbia v. Heller, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 07-290, filed June 26, 2008). The following provisions - D.C. Code §§ 7-2502.02(a)(4), 22-4504(a), and 7-2507.02 - violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes. Washington banned handguns in 1976, saying it was designed to reduce violent crime in the nation's capital. The City Council that adopted the ban said it was justified because "handguns have no legitimate use in the purely urban environment of the District of Columbia." Dick Anthony Heller, an armed security guard, sued the District after it rejected his application to keep a handgun at home for protection. The U.S. Court of Appeals for the District of Columbia Circuit ruled 2-1 for Heller in March. Judge Laurence Silberman said reasonable regulations still could be permitted but said the ban went too far. The United States Supreme Court agreed with the DC Circuit. In his textual analysis of the meaning of the Second Amendment, Justice Scalia wrote, "It is always perilous to derive the meaning of an adopted provision from another provision deleted in the drafting process." ___ U.S. at ___. Later, summing up the Court's ruling, he said, "Undoubtedly, some think the the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem. This is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct." ___ U.S. at ___.
http://supct.law.cornell.edu/supct/html/07-290.ZO.html
Pagan v. Fruchey, 492 F3d 766 (6th Cir No 04-4414, June 29, 2007), cert. denied Dec 3, 2007 (No 07-420, 128 SCt 711, 169 LEd2d 554, 76 USLW 3286, 3287). Car for Sale. Resident challenged city's ban on parking private cars with "for sale" sign on public street. Held: a fifteen judge ("en banc") panel of the Sixth Circuit ruled 8 -7 that the city had not provided sufficient evidence to show the rule actually advanced the city's interests, and could not be viewed as content neutral, time place and manner rule.
State v. Warledo, ___ Kan. ___, ___ P.3d ___ (No. 97,759 filed 8/8/08). Warledo stomped his mother to death and then set her on fire to "get rid of the evidence." A portion of the stomping was captured by the 911 call, where Warledo could be heard saying, "die, die die!" Police arrested him at the scene and transported him to the station. He was shackled and handcuffed to prevent him from hurting himself because he had been banging his head against the shield in the BAT van while waiting to be transported. Warledo was placed in an interview alone while waiting for detectived to arrive, and recorded but not monitored. About five minutes before detectives arrived, he said "I need to call a lawyer. Where's my lawyer?" After detectives arrived, they began swabbing him and collecting his clothes. Several times Warledo made voluntary statments implicating himself, saying things like "I did it, I did it. I will sign anything you want." Later he was Mirandized and repeated his confessions. The Court determined the pre-warning statements were volunteered and were not the product of custodial interrogation nor its functional equivalent. The Court alsl rejected Warledo's Doyle argument because the tape was redacted by both counsel and no objectin was asserted at trial. The court surmised that failure to object may have been a strategy decision to support Warledo's mental illness assertion.
http://www.kscourts.org/Cases-and-Opinions/opinions/supct/2008/20080808/97759.htm
United States v. Burson, ___ F.3d ___ (10th Cir. No. 07-2197, filed 7/11/08). Despite defendant's claims that he had been up for days, was high on methamphetamine and cocaine, and did not understand what was going on around him, Defendant's statements and the video tape of the interview show that Defendant was not impaired to a substantial degree to overcome his ability to give a knowing, intelligent and voluntary waiver. The mere fact of drug or alcohol use will not suffice.
http://ca10.washburnlaw.edu/cases/2008/07/07-2197.pdf
State v. Bale, ___ Kan.App.2d ___, ___ P.3d ___ (No. 96929, filed 5/16/08). Defendant had a few drinks, then got in her car. While backing up, she ran over one of her children, killing him. Defendant became hysterical and was taken to the hospital. The officer investigating the accident smelled an odor of alcohol on her, and began reading her the implied consent advisory. While the officer was reading it, Defendant said, "yes, she was intoxicated and yes, she's responsible for the accident and that she did not mean to hurt her son." That statement was admitted at trial. Defendant claimed it should have been suppressed. The Court disagreed. It said it was either a volunteered statement, and a later similar statement was not a product of custodial interrogation. Defendant had contacted the investigating officer and set up the interview. Defendant drover herself to the police station, was taken to an interview room and told that she was not under arrest. Only one officer was in the room, and Defendant never expressed a desire to leave. The interview was not very long, and Defendant was allowed to leave at its conclusion. Under these circumstances, a reasonable person in Bale's position would not perceive that she was in custody.
http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2008/20080516/96929.htm
United States v. Cronin, ___ F.Supp.2d ___ (No. 2008)(2008 WL 836165 (D. Kan. 2008)..An officer asked a suspect to identify a fanny pack. While the officer's question went beyond questioning attendant to an investigatory detention, they were not acusatory, defendant was not separated from his friends at the time and none of the officers displayed a weapon or made physical contact with the suspect. Thus, he was not in custody for Miranda purposes.
State v. Ventris, ___ Kan. ___, ___ P.3d ___ (No. 94,002, filed 2/1/2008). Admission of the testimony of a under cover informant (cellmate) violated defendant's right to counsel under the Sixth Amendment. Ventris killed Hicks. The state used a jail plant and used his testimony in rebuttal to impeach Ventris's testimony. The Kansas Surpreme Court held that statements obtained in violation of the Sixth Amendment are not admissible for any purpose. Cf. Harris v. New York, 401 U.S. 22, 91 S.Ct. 643, 28 L.Ed. 2d 1 (1971).
http://www.kscourts.org/Cases-and-Opinions/opinions/supct/2008/20080201/94002.htm
State v. Farmer, ___ Kan. ___, ___ P.3d ___ (No. 91,466, filed 2/1/2008). Farmer shot and killed one individual, and got in a fight with another. During an interview one day later, a detective told Farmer to remember that "God can forgive everything, but . . . you have to be honest." The detective also stated to Farmer that "God wants you to tell the truth." Farmer confessed, but alleged his confession was coerced. The Court disagreed. Noting the detective did not threaten Farmer if he didn't tell the truth, nor did he promise leniency if he did.
http://www.kscourts.org/Cases-and-Opinions/opinions/supct/2008/20080201/91466.htm
In the Matter of L.M., ___ Kan. ___, ___ P.3d ___ (No. 96,197, filed 6/2008). Juvenile offenders have a constiutional right to a jury trial.
http://www.kscourts.org/Cases-and-Opinions/opinions/supct/2008/20080620/96197.htm
State v. Cook, ___ Kan. ___, ___ P.3d ___ (No. 98,671, filed 07/28/08). Cook, a sex offender, failed to register his proper address beginning in late 2005. On July 1, 2006, the Kansas Legislature changed violation of the registration statute from a severity-level 10 nonperson felony to a severity level 5 person felony. The state charged Cook with violating the offender registration statue on November 21, 2006. Cook convinced the district court that since the crime occurred prior to July 1, 2006, the charge should be dismissed as ex post facto. Nice try, said the Supreme Court. If the actual crime for which a defendant is being sentenced was committed after the effective date of the new statute, there is no ex post facto violation. Although Cook committed several violations of the act before the amendment, he also violated it several times afterwards. Citizens are presumed to know that the legislature has made certain conduct illegal. See Cheek v. United States, 498 U.S. 192, 199, 112 L. Ed. 2d 617, 111 S. Ct. 604 (1991) (every person is presumed to know the law); State ex rel. Murray v. Palmgren, 231 Kan. 524, 536, 646 P.2d 1091 (1982) (ignorance of law no excuse for violating law); State v. Young, 228 Kan. 355, 360, 614 P.2d 441 (1980) (all persons are presumed to know general public laws of state where they reside, as well as legal effects of their acts). "Cook argues on appeal that it would be unfair for the State to wait to charge someone guilty of a lesser crime until the legislature increases the penalty for that crime. His reasoning would appear to require the State to charge every defendant as soon as it becomes aware of criminal activity. If a sting operation were to turn up evidence that someone was smoking marijuana, the State would not be permitted to wait to acquire additional evidence showing that the individual was also dealing in heroin. In this instance, it does not violate principles of fairness for the State to delay charging an individual who continues to commit a crime or commits new crimes over a period of many months."
http://www.kscourts.org/Cases-and-Opinions/opinions/supct/2008/20080725/98671.htm
State v. Anderson, ___ Kan.App.2d ___, ___ P.3d ___ (No. 98,611, filed 7/28/2008). Offenders must register even if the Sheriff fails to tell them about it. "A familiar rule tells us that ignorance of the law is no excuse. So when the legislature criminalizes something, we may be prosecuted for it even though we didn't know it was illegal. But what happens if the legislature instructs someone to tell us about it? Can we be prosecuted if the person who was supposed to tell us slips up?" The answer is yes.
http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2008/20080725/98611.htm
United States v. Hays, ___ F.3d ___ (10th Cir. No. 07-8039, filed 5/20/2008). Wyoming's domestic battery statute, that prohibits touching "in a rude, insolent or angry manner," does not qualify as a misdemeanor crime of domestic violence that has as an element the use or attempted use of physical force, as required by 18 U.S.C. § 921(a)(33)(A). Force as used in the federal statute must be more than de minimus, and different from the meaning of force in the physics community. Judge Ebel dissents.
http://ca10.washburnlaw.edu/cases/2008/05/07-8039.pdf
Rowe v. New Hampshire Motor Transp. Ass'n, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 06-457, 2/20/2008). A federal statute that prohibits states from enacting any law "related to" a motor carrier "price, route, or service" preempts two provisions of a Maine tobacco law, which regulate the delivery of tobacco to customers within the state.
http://supct.law.cornell.edu/supct/html/06-457.ZO.html
Bridge v. Phoenix Bond & Indemnity Co., ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 07-210, filed 6/9/2008). A plaintiff asserting a RICO claim (18 U. S. C. sec.1964(c)), predicated on mail fraud need not show, either as an element of its claim or as a prerequisite to establishing proximate causation, that it relied on the defendant's alleged misrepresentations. No reliance showing is required to establish that a person has violated sec.1962(c) by conducting an enterprise's affairs through a pattern of racketeering activity predicated on mail fraud.
http://www.law.cornell.edu/supct/html/07-210.ZS.html
United States v. Chavez, ___ F.3d ___ (10th Cir. No. 07-2008, filed 7/29/08). The DEA had been investigating Servando Moreno for cocaine distribution. They had a CI arrange a buy to occur in Santa Rosa. DEA sureveilled Moreno and determined he was traveling to Santa Rosa in a white truck driven by Chavez. They had a New Mexico Trooper stop and search the truck and make "his own PC." The trooper treated it like a normal traffic stop and stopped the vehicle for no head lights in a safety zone (although he was mistaken about what the law required). After turning the encounter back into a voluntary stop, he asked for consent. Chavez asked what would happen if he refused. The trooper replied that he would run his drug dog around the truck. The driver consented, and the trooper found the cocaine. The government never argued the legality of the traffic stop, instead relying on the probable cause possessed by the DEA and the automobile exception. The Circuit determined the collective knowledge doctrine applied, and the trooper was entitled to act on the probable cause possessed by the DEA, even though the facts establishing probable cause were never shared with the Trooper. Calling it an example of "vertical collective knowledge" the Court held that where one officer has probable cause, and tells another to act on that probable cause but does not share the details, the second officer can still rely on the first officer's probable cause because they are on the same "team."
http://ca10.washburnlaw.edu/cases/2008/07/07-2008.pdf
United States v. Smith, ___ F.3d ___ (10th Cir. No. 07-6206, filed 7/11/08). Although search warrant may have been facially overbroad (describing a premises known as 311 SE 41st, including "a detached garage with a room built above it located at the North end of the driveway), a reasonable officer would not have known of its overbreadth, and the warrant was served in a reasonable manner. The warrant contained the description of property to be searched, was based on the case agent's personal observation of the premises, was all contained in a fence surrounding the residence and detached garage, the occupant of 311 SE 41st appeared to be in control of all the property, and she told officers no one lived in the garage apartment. Therefore, evidence was admissible. The garage apartment actually had a different address (311 ½ SE 41st).
http://ca10.washburnlaw.edu/cases/2008/07/07-6206.pdf
United States v. Garcia-Zambrano, ___ F.3d ___ (10th Cir. No. 07-1261, filed 7/3/08). Two officers collaborated on obtaining a search warrant for defendant's apartment, but did not communicate very well. One officer, Fitzgibbons, was an off-duty courtesy officer at the apartment complex and had verified the smell of burning marijuana coming from defendant's apartment four different times. Detective Saunders prepared a search warrant affidavit based on his interpretation of what Fitzgibbons told him, most of which he got wrong. The search yielded metamphetamine, ecstacy and marijuana. After a Franks hearing, the district court suppressed all the evidence finding the affidavit was false. The Circuit reversed. It agreed the affidavit contained several false statements, but viewing the remaining statements, the affidavit established probable cause. Reading the affidavit de novo, it concluded the following assertions supported probable cause: (1) management frequently smelled burning marijuana coming from the apartment; (2) several tenants had complained about the apartment; (3) potential tenants have noticed the odor; (4) Office Fitzgibbons corroborated the odor on four occasions; (5) Officer Fitzgibbons has experience in the odor of marijuana; (6) Officer Fitzgibbons had recently smelled the odor and attempted contact, but got no answer at the door; (7) Defendant had at least 5 prior arrest for marijuana possession and (8) a drug dog alerted, but did not indicate on the apartment the day the affidavit was prepared.
http://ca10.washburnlaw.edu/cases/2008/07/07-1261.pdf
United States v. Forbes, ___ F.3d ___ (10th Cir. No. 07-2191, filed 6/17/2008). CBP agents stopped a truck at the New Mexico border. After exchanging basic information with the driver, the CBP agent asked if he could look in the sleeper. The driver became nervous and denied consent. The CBP agent then asked the driver if he would consent to a canine sniff. The driver agreed and was directed to a secondary inspection area. Although the parties disputed what happened next, the Court assumed that agents searched the trailer without consent, but found nothing incriminating. Officers then ran the dog around the exterior of the cab, and the dog alerted on both the passenger side and indicated on the driver's side of the tractor. The parties disputed whether the driver consented to a search of the cab at that point, but the court found it was a search based on probable cause and refused to suppress the four bundles (91.6 kilograms) of marijuana found behind the driver's seat. The Court held the canine sniff provided an independent source of probable cause for the search.
http://ca10.washburnlaw.edu/cases/2008/06/07-2191.pdf
State v. Smith, ___ Kan. ___, ___ P.3d ___ (No. 96189, filed 5/30/08). An officer stopped a car for a broken taillight, then noticed the tag was expired. The passenger, who was known to the officer and was not the owner of the car or the tag, sat on the curb. The backup officer also knew the passenger and suspected she might have drugs in her possession. He received consent to search her purse and found methamphetamine. The passenger claimed the evidence should have been suppressed because she was detained and asked questions (how you doing? and "can I search your purse?") unrelated to the purposes of the stop. The Kansas Supreme Court agreed, finding the passenger was necessarily detained while the officer dealt with the driver, and the questions put to the passenger exceeded the normal scope and duration of the traffic stop. In doing so, they reversed the Court of Appeals on its holding that Muehler v. Mena allows officers to expand the scope of a traffic stop to include a search not related to the purposes of the stop, even if a detainee has given permission for the search. It also held that since there was no causal break between the violation of the scope's restrictions and the search, the consent did not purge any taint. http://www.kscourts.org/Cases-and-Opinions/opinions/supct/2008/20080530/96189.htm
United States v. Pikyavit, ___ F.3d ___ (10th Cir. No. 07-4113, filed 6/4/2008). A conviction and sentence for possession of ammunition after police, at defendant's invitation while he was in jail, visited his home and entered the premises even though the door was locked is affirmed over claims that defendant's consent to the search of his home did not extend to a situation in which his home's doors were locked or to any other rooms in his house besides the kitchen and the living room. Defendant wanted police to go look for evidence of a fight. Instead they found ammunition, and defendant was a convicted felon.
http://ca10.washburnlaw.edu/cases/2008/06/07-4113.pdf
United States v. Thompson, ___ F.3d ___ (10th Cir. No. 07-5103, filed 5/5/2008). Tulsa police received a tip that a black man known as "Grasshopper" had robbed a bank and was at a certain address. Police went there, knocked on the door, and obtained the consent of the owner to enter and search. Given consent by the owner to enter the NorthWest bedroom, officers found Grasshopper hiding in the closet. Unknown to the officers at the time, Grasshopper rented a room from the owner. Grashopper claimed the entry and search violated his rights. The Circuit rejected the contention finding that the owner had actual authority to consent, and all residents had access to Grasshopper's room. While a landlord does not have authority to consent to search an area leased exclusively to a tenant, Chapman v. United States, 365 U.S. 61, 616-17 (1961); a third-party with actual or apparent authority over commonly-held property can give valid consent to enter and search. Georgia v. Randolph, 547 U.S. 103, 106 (2006). Also, requiring the defendant to don the dark sunglasses found in his room was not unnecessarily suggestive in view of the robbery video tapes showing the suspect wearing similar dark glasses.
http://ca10.washburnlaw.edu/cases/2008/05/07-5103.pdf
United States v. Valadez-Valadez, ___ F.3d ___ (No. 06-2341, filed 5/12/2008). Officer did not have reasonable suspicion of impeding traffic when he stopped a vehicle for driving 10 miles per hour under the speed limit. There was no minimum speed posted. The officer followed the vehicle for several miles, and when he stopped it, found 21 passengers, including some who were illegal aliens being transported in violation of 8 U.S.C. § 1234(a)(1)(A)(ii).
http://ca10.washburnlaw.edu/cases/2008/05/06-2341.pdf
United States v. v. Reeves, ___ F.3d ___ (No. 07-8028, filed 5/72008). In a prosecution for being a felon in possession of a firearm and ammunition, denial of a motion to suppress evidence is reversed where: (1) defendant was seized inside his motel room without a warrant in violation of Payton v. New York, 445 U.S. 573 (1980); and (2) the government did not demonstrate that defendant's subsequent consents to search were not tainted by the unlawful seizure. Several officers showed up at Reeves' motel room at about 0245 hours to investigate him for an aggravated assault. After knocking loudly for about 20 minutes, Reeves finally opened his door and complied with their commands to step out of the room. He was wearing an empty holster, and a revolver was in plain view from outside the room. He was taken into custody at taser-point. Reeves initially consented to a search of the room, but quickly rescinded his consent. He later consented again at about 0820 hours. Pursuant to that consent, officers seized two long-barreled rifles and a .22 handgun. "Opening the door to one's home is not voluntary if ordered to do under color of authority." Reeves, ___ F.3d at ___. The Court concluded that "a reasonable person faced with several police officers consistently knocking and yelling at their door for twenty minutes in the early morning hours would not feel free to ignore the officers' implicit command to open the door."
http://ca10.washburnlaw.edu/cases/2008/05/07-8028.pdf
United States v. Gonzalo Muñoz-Nava, ___ F.2d ___ (No. 06-2247 & 06-2254, filed 5/6/08). A DEA officer stopped defendant in a bus station. Defendant said he lived in El Paso and was in Albuquerque to visit his parents. His only luggage was a shopping bag containing a pair of cowboy boots, house slippers, a sweatshirt and a U.S. Naturalization certificate. The agent testified that the boots Defendant was wearing appeared "ballooned up" as if they had false bottoms, like he had seen on previous seizures. Defendant consented to a dog sniff. The dog indicated, but could not pinpoint the source of the odor (due to windy conditions). Defendant was handcuffed and taken to the DEA office. The dog indicated and found the source. The agent obtained a warrant and located 770.8 grams of heroin in the soles of the boots. Defendant alleged he was arrested without probable cause and the evidence should be suppressed. The Court rejected his argument, finding all the evidence, under the totality of the circumstances, established probable cause.
http://ca10.washburnlaw.edu/cases/2008/05/06-2247.pdf
State v. Moore, ___ Kan.App.2d ___, ___ P.3d ___ (No. 96597, filed 4/28/2008). A Reno County sheriff’s deputy was working part-time as a Cheney Reservoir Park Ranger. He saw a green pickup swerving all over the road and driving 20 mph in a 30 mph zone, and stopped it, suspecting the driver might be driving under the influence. While approaching the vehicle, he noted the odor of anhydrous ammonia and ether, both of which he knew were associated with the manufacture of methamphetamine. The driver produced an expired license and had trouble locating his insurance documents. While the driver was searching for them, the officer noted a can of Coleman fuel and two cans of starter fluid in the bed of the truck. The driver asked to get out of the truck to continue searching for his insurance card, and the officer allowed it after a pat-down. When the driver was getting out, the officer noticed a roll of paper towels and a open container of lithium batteries on the seat of the truck. The officer told the driver (Moore) that he was going to search his truck. Moore protested, saying the officer could not search without a warrant. The officer searched anyway, and found various drug paraphernalia and meth-making ingredients and equipment. The backup officer went to the campsite that Moore said he was headed to, and detected a strong chemical smell. Officers obtained a warrant, and found more meth-making equipment and ingredients. Moore argued the items should be suppressed, alleging the initial stop was unlawful and the items discovered were fruit of the unlawful stop. The Court of Appeals disagreed, holding the stop was based on reasonable suspicion of driving under the influence and the scope of the vehicle search was validly expanded based on items in plain view and plain smell.
http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2008/20080425/96597.htm
Virginia v. Moore, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 06-1082, filed 4/23/2008). Portsmouth Virginia police stopped Moore for suspicion of driving while suspended. They arrested him, and found crack cocaine and $516 in cash in a search incident to arrest that occurred somewhat after the arrest. Virginia state law required issuance of a summons rather than an arrest for driving while suspended. Moore argued the evidence should have been suppressed because his arrest violated state law. The Virginia Supreme Court agreed. The United States Supreme Court reversed, holding that the Fourth Amendment was never meant to incorporate any restrictions that state legislatures may choose to enact restricting the ability of law enforcement officers to make a custodial arrest. See also Atwater v. Lago Vista, 532 U.S. 318, 345 (2001).
http://www.law.cornell.edu/supct/html/06-1082.ZO.html
United States v. Verdin-Garcia, ___ F.3d ___ (10th Cir. No. 06-3354, filed 2/19/2008). Where the warnings given and other circumstances establish a prisoner's awareness of the possibility of monitoring or recording, his decision to take advantage of the privilege of using a prison telephone implies consent to the conditions placed upon it. Defendants' convictions and sentences for crimes relating to their leadership of a large marijuana and methamphetamine trafficking conspiracy are affirmed over claims that: 1) wiretaps carried out during the investigation were invalid and wiretap-recorded evidence should have been excluded from their trial; 2) translations of wiretapped conversations were improper and should have been excluded; 3) one defendant's telephone calls made from prison after his arrest were improperly recorded for use as voice exemplars and that derivative evidence should have been excluded; and 4) the sentences were incorrectly calculated and the life terms imposed were unreasonably long.
http://ca10.washburnlaw.edu/cases/2008/02/06-3354.pdf
State v. Andrews, ___ Kan.App.2d ___, ___ P.3d ___ (No. 96,627, filed 2/15/2008). Andrews was arrested on a warrant and confined in jail. He called his girlfriend and said that the trailer he was pulling at the time of his arrest had "dope and guns" in it. Based on his recorded jail conversations, Johnson County Sheriff's deputies obtained a warrant, seized the dope and guns, and used them against Andrews at trial. He claimed they should be suppressed because intercepting his jail phone calls required a warrant. The Court of Appeals held that no warrant was necessary because, by using the phone, Andrews consented. Monitoring and recording was clearly spelled out in the inmate manual, on signs near the phones, and on the phones themselves.
http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2008/20080215/96627.htm
Jenkins v. Currier, ___ F.3d ___ (10th Cir. No. 07-6113, filed 1/23/2008). Warrantless arrest of prisoner who was mistakenly released from federal custody did not violate the Fourth Amendment. Jenkins was serving a federal sentence and was sentenced in December 2003 to concurrent 12-year sentences in Oklahoma state court. Those sentences were to run concurrently with Jenkins' federal sentence. He was released from federal custody when his sentence expired in May 2004, rather than being returned to the Oklahoma state prison system. Oklahoma officials arrested him in February 2005. The Circuit held that no warrant or detention hearing was required. Jenkins' status was akin to an escapee.
http://ca10.washburnlaw.edu/cases/2008/01/07-6113.pdf
State v. Jeffery, ___ Kan.App.2d ___, ___ P.3d ___ (No. 97,251, filed 01/11/2008). Officers responded to Jeffery's apartment on New Years eve after neighbors reported that Jeffery had cut his wrists and attempted to hang himself in a tree. At first, Jeffery would not open the door, but when he finally opened the door without the security chain attached, officers rushed him, ordered him to lie on the floor, and handcuffed him. Their intent was not to arrest him, but to take him for a mental health evaluation. Officers then searched the full apartment in walk-through fashion looking either for any person who might be injured or any weapons that Jeffery might use to hurt himself or others. They found drugs and paraphernalia. Jeffery was prosecuted and argued the evidence should have been suppressed. The Court of Appeals agreed it should have been suppressed, holding that the protective sweep exception does not apply outside an arrest context, and any emergency was over because Jeffery was in cuffs and did not have access to other items in the residence.
http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2008/20080111/97251.htm
State v. Ruiz-Reyes, ___ Kan. ___, ___ P.3d ___ (No. 95,056, filed 2/1/2008) and State v. Paul, ___ Kan. ___, ___ P.3d ___ (No. 95,105, filed 2/1//2008). Although the sequential relationship requirement from the old habitual criminal act does not apply under the Kansas Sentencing Guidelines, a court still has to determine whether the defendant had a prior conviction at the time of commission of the present offense. Although Ruiz-Reyes had a pending prosecution at the time of commission of his offense, he was not convicted of it until later, so he could not be sentenced as a second offender. Paul had two prior convictions, with different offense dates but both being sentenced on the same day. The district court improperly enhanced Ruiz-Reyes's sentence, but properly enhanced Paul's sentence.
http://www.kscourts.org/Cases-and-Opinions/opinions/supct/2008/20080201/95056.htm
http://www.kscourts.org/Cases-and-Opinions/opinions/supct/2008/20080201/95105.htm
State v. Moore, ___ Kan.App.2d ___, ___ P.3d ___ (No. 97,003, filed 1/18/2008). A 7-inch comb that sheaths and contains a 3.5 inch serrated blade knife is not an "ordinary pocketknife" and will support a conviction for criminal use of weapons in violation of K.S.A. 21-4201(a)(2). Where the comb operates as the handle for the knife and the blade does not fold into the handle, the knife is not an "ordinary pocket knife." Also, the term "dangerous knife" used in the statute does not make the statute unconstitutionally vague.
http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2008/20080118/97003.htm
January 1, 2007 to December 31, 2007 (or thereabouts)
Quick Links to prior year lists.
Full text of United States Supreme Court decisions: http://supct.law.cornell.edu/supct/
Full text of 10th Circuit decisions: http://www.kscourts.org/ca10/
Full text of Kansas Appellate decisions: http://www.kscourts.org/kscases/
Bankruptcy
Troff v. Utah, ___ F.3d ___ (10th Cir. No. 05-4244, filed 3/15/2007). 11 U.S.C. section 523(a)(7) does not permit a debtor in a Chapter 7 bankruptcy proceeding to discharge a restitution obligation imposed as part of a state criminal sentence and payable to a private individual.
http://www.kscourts.org/ca10/cases/2007/05/05-4244.htm
Civil & Criminal Liability
Robbins v. City of Wichita, ___ Kan. ___, ___ P.3d ___ (No 96970, filed 12/14/07). Wichita police responded to a 911 call about a domestic disturbance. The caller locked the suspect in the garage and, while still on the phone with 911, the suspect began breaking in the door from the garage to the house with an ax. He eventually assaulted persons inside with the ax, then left in a truck. Officers pursued him for about 2 minutes with their lights and siren operating at speeds of about 70 miles per hour. The suspect ran a red light, and t-boned another car killing both that driver and the suspect. The innocent victim's husband, who witnessed the accident, sued the city of Wichita, the chief of police, and the police officers involved in the pursuit. The district court granted the defendant's motion for summary judgment, concluding that the defendants did not owe a duty of care to the innocent victim. The Kansas Supreme Court affirmed, but in doing so changed the law on pursuits. The Court held that K.S.A. 8-1506 imposes a duty on the operators of emergency vehicles to drive with "due regard for the safety of all persons," and this duty applies not only to actual physical operation of the vehicle, but also to the decision to pursue or to continue pursuit, overruling any contrary statement in Thorton v. Shore, 233 Kan. 737 (1983). Finding that the pursuing officers did not recklessly disregard the rights of the innocent victim, it found not breach of duty and affirmed summary judgment for the officers.
http://www.kscourts.org/Cases-and-Opinions/opinions/supct/2007/20071214/96970.htm
Casey v. City of Fed. Heights, ___ F.3d ___ (10th Cir. No. 06-1426, filed 12/10/2007). In an action claiming excessive force under the Fourth Amendment and 42 U.S.C. § 1983, summary judgment dismissal of the claims is reversed where defendants were not entitled to summary judgment under circumstances in which plaintiff went to a municipal courthouse to contest a traffic ticket, lost his case, walked to the parking lot to retrieve money from his truck to pay the fine, and on his way back was grabbed, tackled, Tasered, and beaten by city police officers.
http://ca10.washburnlaw.edu/cases/2007/12/06-1426.pdf
Case name unknown. Thu Oct 25, 2007 1:20 pm (PST) Courtesy of the Newspaper.com
http://www.thenewspaper.com/news/20/2035.asp New Jersey appellate court upholds the use of extreme force in taking blood samples from motorists accused of DUI. The court ruled that police may inflict permanent physical damage while forcibly taking blood from a motorist accused of driving under the influence of alcohol (DUI). The court found that police officers did nothing wrong when they held down Russell Johnston in such a way that his wrist suffered permanent nerve damage as a nurse took his blood. During the incident, a police officer put his entire weight on one of Johnston's wrists to hold it down and used a handcuff to secure the other. Johnston sought to bring the excessive force question to a jury, but a Mercer County Court judge and the two judge appellate panel disagreed, ruling that no suit could be brought against the officers for the injury inflicted. "We are satisfied that the actions taken by the police officers to restrain plaintiff were objectively reasonable," the appellate panel ruled. "Defendants are thus entitled to the protections afforded by the qualified immunity doctrine."
Mecham v. Frazier, ___ F.3d ___ (10th Cir. No. 05-4297, filed 9/11/2007). In civil rights suit alleging excessive force in using pepper spray, denial of summary judgment on qualified immunity is reversed where the officers' use of force was objectively reasonable in this case. Utah officers stopped defendant for speeding and no seat belt. Her Arizona license was reported as suspended, although she also had a valid license from Utah (which she denied). The officer told her that he would not let her drive while suspended. Defendant took a call from her mother on her cell phone, and refused the officer's order to end the call. The officers called for a wrecker, which arrived 15 minutes later. Defendant refused orders to get out of the car, so officers sprayed her and removed her. She alleged they used excessive force. The officers moved for summary judgment based on qualified immunity. The district court denied the motion, holding that objective reasonableness should be decided by a jury. The circuit disagreed, stating it is not for the jury to decide where the facts are uncontroverted, and on those uncontroverted facts, the officers actions were reasonable.
http://www.kscourts.org/ca10/cases/2007/09/05-4297.pdf
Anderson v. Suiters, ___ F.3d ___ (10th Cir. No. 06-6134, filed 8/29/2007). In an action brought against a police officer, a local television reporter and the TV station's owner pursuant to 42 U.S.C. section 1983 and Oklahoma state tort law arising from the airing of excerpts of a videotape containing the rape of plaintiff, dismissal and summary judgment rulings for media defendants are affirmed over claims that the district court erred in: 1) concluding that the media defendants were not state actors; 2) concluding that her allegations and proffered evidence failed to support her state law tort claims against them; and 3) denying leave to amend her complaint to add certain claims.
http://www.kscourts.org/ca10/cases/2007/08/06-6134.htm
Alvarado v. KOB-TV, L.L.C., ___ F.3d ___ (10th Cir. No. 06-2001, filed 7/16/2007). In a suit brought by two former undercover police officers against a television station for broadcasting their identities and their undercover status in the context of their suspected involvement in an alleged incident of sexual assault, Rule 12(b)(6) dismissal of plaintiffs' claims is affirmed as plaintiffs' allegations did not support a tort claim for either invasion of privacy or intentional infliction of emotional distress.
http://www.kscourts.org/ca10/cases/2007/07/06-2001.htm
Wilder v. Turner, ___ F.3d ___ (10th Cir. No. 06-1092, filed 6/12/2007). In a 42 U.S.C. § 1983 action against a Colorado Trooper for false arrest, the trooper was entitled to qualified immunity because there was probable cause to arrest the plaintiff for DUI. The trooper stopped Plaintiff for speeding, smelled an odor of alcohol on his breath, and observed pinkish and watery eyes, a flushed face, and the driver speaking unusually slow and deliberately. The driver admitted to having a glass of wine ten to fifteen minutes earlier. The driver's demeanor was argumentative, but he eventually became cooperative. The driver's clothes were orderly, he did not appear to have balance problems and he normally exited the vehicle. The driver refused any field sobriety tests, and was arrested. A later blood test showed an blood alcohol content of .014. The district court denied immunity and the case went to trial. A first jury found in favor of the trooper. The district court set it aside and a second jury found no probable cause and awarded the driver $1 million in damages. The Circuit reversed, holding that the factors above, combined with a refusal to perform field sobriety tests, was probable cause to arrest. See Summers v. Utah, 927 F.2d 1165 (10th Cir. 1991).
http://www.kscourts.org/ca10/cases/2007/06/06-1092.htm
Scott v. Harris, ___ U.S. ___, 127 S.Ct. 1769, ___ L.Ed.3d ___ (No. 05-1631, filed 4/30/07). In this case, a Coweta County, Georgia, deputy clocked the suspect’s vehicle driving at 73 miles per hour in a 55-mile-per-hour zone. The deputy pursued, and in attempting the flee, the suspect drove between 70 and 90 miles per hour, passed other vehicles by crossing to the wrong side of the road, and ran through two red lights. The deputy signaled for the suspect to stop, but the suspect refused. The deputy radioed a supervisor asking for permission to perform a “PIT” (Precision Intervention Technique) maneuver, which is designed to stop a fleeing motorist safely and quickly by hitting their car at a specific point and throwing it into a spin. The supervisor gave the deputy permission to perform the maneuver, but the deputy determined that he could not do it because he was going too fast. Instead, he rammed his cruiser directly into the suspect’s vehicle, causing the suspect to lose control, leave the road, run down an embankment, and crash. As a result of the crash, the suspect was rendered a quadriplegic.
The United States Supreme Court reversed a judgment holding the officer was not entitled to qualified immunity. It held the officer's action of ramming the vehicle was objectively reasonable because the chase initiated by the suspect posed a substantial and immediate risk of serious physical injury to others. Accordingly, it held the officer was entitled to summary judgment. The court took the unusual step of posting the chase video on the court's website.
http://www.supremecourtus.gov/opinions/06slipopinion.html
Piercy v. Maketa, No. 05-1192 (10th Cir. March 27, 2007). In a suit against a county sheriff's office and several of its employees alleging sex discrimination and retaliation, summary judgment for defendants is affirmed in part as to the retaliation claim as plaintiff failed to bring forward evidence to show that retaliatory motive was a determinative factor in her dismissal. However, the judgment is reversed in part as to the discrimination claim where summary judgment was improperly granted on whether plaintiff's inability to transfer to a particular jail was an adverse employment action.
West v. Keef, ___ F.3d ___ (10th Cir. No. 05-6353, filed 3/14/2007). A child called 911 and stated that his mother was "going crazy," that she was "[t]rying to kill herself," that she was "trying to cut her[self] with a knife" and other statements to the same effect. Those statements, standing alone and in context, are sufficient to justify warrantless entry. Once inside, the officers' own observations confirmed the son's fears and fully justified a warrantless seizure. The fact that officers failed to comply with Oklahoma state law on emergency detentions was irrelevant.
http://www.kscourts.org/ca10/cases/2007/03/05-6353.htm
Wallace v. Kato, ___ U.S. ___, 127 S.Ct. 1091, ___ L.Ed.3d ___ (No. 05-1240, filed 2/21/2007). The statute of limitations for a 42 U.S.C. section 1983 claim seeking damages for a false arrest in violation of the Fourth Amendment, where the arrest is followed by criminal proceedings, begins to run at the time the claimant becomes detained pursuant to legal process, e.g., when he appeared before the examining magistrate and was bound over for trial.
Marshall v. Columbia Lea Reg'l Hosp., ___ F.3d ___ (10th Cir. No. 05-2173, filed 1/9/2007). A judgment for plaintiff on a civil rights claim brought against a city and police for violation of his Fourth Amendment right to be free of unreasonable search and seizure is affirmed where the officers conceded that they violated his Fourth Amendment rights when they ordered a warrantless, nonconsensual blood test for an alleged misdemeanor, and, contrary to their argument, the constitutional right was clearly established.
DL Suspension
Robinson v. Kansas Department of Revenue, ___ Kan.App.2d ___, ___ P.3d ___ (No. 95931, 3/16/2007). A trooper stopped a noncommercial motor vehicle and found the driver was intoxicated. He arrested the driver and read him the DC-70 form, which said nothing about how a failure or refusal would affect the driver's commercial driver's license. The driver argued that failure to do so was a due process violation. The Court of Appeals disagreed, noting that K.S.A. 2006 Supp. 8-1001(g) states that failure to give the noticed required by K.S.A. 8-2,145 "shall not invalidate any action taken as a result of the requirements of this section."
http://www.kscourts.org/kscases/ctapp/2007/20070316/95931.htm
DUI
State v. Stevens, ___ Kan. ___, ___ P.3d ___ (No 94187, filed 12/7/07), affirming 36 Kan. App. 2d 323, 138 P.3d 1262 (2006). Deficient sample breath tests are admissible under K.S.A.8-1567(a)(3) as "other competent evidence." Cf. State v. Hermann, 33 Kan.App.2d 46, 99 P.3d 632 (2004)(deficient samples are not admissible as other competent evidence under K.S.A. 8-1567(a)(1)).
http://www.kscourts.org/Cases-and-Opinions/opinions/supct/2007/20071207/94187.htm
Ashley v. Kansas Department of Revenue, ___ Kan.App.2d ___, ___ P.3d ___ (No. 96,707, filed 9/7/2007). Officer Glaser arrested Ashley for DUI. Officer Doherty performed the breath test, which Ashley failed. Officer Glaser served the DC-27 form on Ashley. Ashley claimed that only Doherty could serve the DC-27 form as the "officer directing administration of the testing," as that term is used in K.S.A. 8-1002(c). The Court of Appeals disagreed, stating Ashely's argument "would require a highly technical interpretation of the statute which is inconsistent with the remedial nature of the legislation."
http://www.kscourts.org/kscases/ctapp/2007/20070907/96707.htm
State v. Whillock, ___ Kan.App.2d ___, ___ P.3d ___ (No. 97,244, filed 9/7/2007). Defendant pled no contest to one count of felony DUI and was sentenced to 13 months in jail. He appealed, claiming that imposition of the 30-day penalty in K.S.A. 8-1567(h) for having a child under 14 in the car was not proved to a jury and violates Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.3d 2d 435 (2000) and State v. Gould, 271 Kan. 394, 23 P.3d 801 (2001). The Court of Appeals agreed.
http://www.kscourts.org/kscases/ctapp/2007/20070907/97244.htm
State v. Tedder, ___ Kan.App.2d ___, ___ P.3d ___ (No. 97,134, filed 7/20/07). There is no constitutional right to consult with an attorney prior to submitting to or refusing a breath test. In addition, asking a defendant whether he or she will submit to a test does not constitute custodial interrogation. Under K.S.A. 8-1001(f)(I), an arrestee has the right to consult with an attorney after completion of the testing. Pursuant to K.S.A. 8-1001(f) (I), request for counsel must be made after completion of the breath test before there can be a violation of a defendant's statutory right to confer with an attorney.
http://www.kscourts.org/kscases/ctapp/2007/20070720/97134.htm
State v. Kogler, ___ Kan.App.2d ___, ___ P.3d ___ (No. 97,586, filed 7/20/07). The notice provisions of K.S.A. 2005 Supp. 8-1001(f) are mandatory and not merely directory. The trooper read the suspect an ICA from an outdated DC-70 form that contained a five-year look back provision. A change in the law sixteen days prior did away with the five–year look back provision. The Court of Appeals held the ICA given did not substantially comply with the statute and suppressed the breath test. It distinguished Barnhart v. Kansas Dept. of Revenue, 243 Kan. 209, 755 P.3d 1337 (1988)(DC-70 paraphrased statutory language, but substantially complied) and State v. Branscum, 19 Kan. App. 2d 836, 877 P.2d 458, rev. denied 255 Kan. 1004 (1994)(officer read outdated DC-70 form, but orally advised defendant of change in the law), and followed Meigs v. Kansas Dept. of Revenue, 251 Kan. 677, 840 P.2d 448 (1992)(Officer used outdated DC-70 form that advised of suspension for 180 days v. one year)..No showing of prejudice is required when the notice given did not substantially comply with the requirements of the statute.
http://www.kscourts.org/kscases/ctapp/2007/20070720/97586.htm
State v. Laturner, 38 Kan. App. 2d 193, 197, 163 P.3d 367 (2007). Lab test result showing that a substance is cocaine is testimonial under Crawford.
United States v. Beckstead, 500 F.3d 1154 (10th Cir. 2007). Defendant's convictions and sentence resulting from his involvement with a methamphetamine lab is affirmed over defendant's primary challenge that the Government denied him due process when officers seized and immediately disposed of the methamphetamine lab pursuant to standard police department policy. Defendant failed to show that police officers acted in bad faith when they destroyed potentially exculpatory evidence. Unless a criminal defendant can show bad faith, "failure to preserve potentially useful evidence does not constitute a denial of due process of law." Arizona v. Youngblood, 488 U.S. 51, 58 (1988); see also Snow v. Sirmons, 474 F.3d 693, 716 (10th Cir. 2007). Destroying evidence pursuant to an established procedure "precludes a finding of bad faith absent other compelling evidence." United States v. Gomez, 191 F.3d 1214, 1219 (10th Cir. 1999). "[M]any of the chemicals associated with the production of methamphetamine are combustible, toxic or corrosive, and very dangerous."
http://www.kscourts.org/ca10/cases/2007/09/05-4178.pdf
Expungment
City of Topeka v. Mark E. Kern, Case No. 1998-11783. Although DUI convictions cannot be expunged on an after 7/1/06, it violates the ex post facto clause to apply the statute to convictions occuring prior to the effective date of the statute. See State v. Anderson, 12 Kan.App.2d 342, 744 P.2d 143 (1987).
Watson v. United States, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 06–571, filed 12/10/2007). In the context of criminal sentencing, a person who trades his drugs for a gun does not "use" a firearm "during and in relation to . . . [a] drug trafficking crime" within the meaning of 18 U.S.C. section 924(c)(1)(A).
http://supct.law.cornell.edu/supct/html/06-571.ZO.html
Logan v. U.S., ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___, 2007 U.S. LEXIS 12922, December 4, 2007. There is a mandatory 15 year sentence under the Armed Career Criminal Act of 1984 for those with at least three prior convictions for violent felonies. 18 U.S.C. §924(e)(1). A conviction for which a person has had civil rights restored does not count. 18 U.S.C. §921(a)(20). A violent felony conviction that did not result in any loss of civil rights does count. The ordinary meaning of the word "restored"--giving back something that has been taken away--does not include retention of something never lost.
http://www.law.cornell.edu/supct/html/06-6911.ZO.html
First Amendment
Morse v. Frederick, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 06-278, 6/25/07). Student at public high school in Juneau Alaska displayed a large banner stating "Bong Hits 4 Jesus" off-campus at an event which was sponsored by the school. The school principal directed the student to take down the banner. Student sued, claiming violation of free speech. The Ninth Circuit held that the student had a free speech right to display the banner, and that the school had not demonstrated a risk of "substantial disruption" of school activities. (Frederick v. Morse, 439 F.3d 1114, 2006). The Supreme Court reversed, holding the message could reasonably be interpreted as promoting illegal drug use. The free speech rights of students in public school are not as great as adults in other settings. Deterring student drug use is an important, perhaps compelling, interest. Schools can prohibit student expression which promotes illegal drug use. Three Justices (Stevens, Souter, Ginsberg) dissented.
Citizens for Peace in Space v. City of Colorado Springs, 477 F.3d 1212 (10th Cir. 2007). The City did not violate protestor's First Amendment rights by restricting all demonstrations from a several block security zone surrounding the Broadmoor Hotel, where the Defense Secretary was hosting a conference of NATO defense ministers. The only persons allowed into the security zone were conference attendees, accredited media, Broadmoor employees, individuals residing in the zone and their guests and service personnel servicing residences in the zone and the Broadmoor. The court held that allowing protest groups to present their views on the periphery of the security zone was constitutionally adequate.
http://www.kscourts.org/ca10/cases/2007/02/05-1391.htm
Interrogation
State v. Bordeaux, ___Kan.App.2d ___(12/7/07). Officers were dispatched to a suspicious person call. The description was of a man wearing blue jeans, a black coat, and a black stocking cap "lurking along the fence at the edge of the caller’s property" near a storage shed which contained personal property. When police arrived they found the defendant, Anthony Bordeaux, hiding in the open garden shed. They ordered him out at gunpoint and he refused several times before complying. Officers patted him down for weapons and handcuffed him. One officer grabbed a black coat from inside the shed and asked Bordeaux whether it was his coat. Bordeaux said it was. The coat contained drugs. Defendant argued his answer and the drugs should have been suppressed due to a Miranda violation. The Court agreed, in a 2-1 decision. The Court said that even if Bordeaux hadn’t been handcuffed yet when the question was asked, he was still in custody due to the use of guns to force him to step out of the shed. The dissent argued that the significance of the question asked wasn’t even apparent until drugs were later found in the coat. When the police confronted him they had no probable cause to believe any crime had been committed. The question about the coat, the dissent urges, was simply a general on-the-scene question asked during the fact-finding process and he would have allowed it.
http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2007/20071207/98161.htm
United States v. Revels, ___ F.3d ___ (10th Cir. No. 06-5223, filed 12/20/2007). In a prosecution for drug- and firearm-related offenses, an order suppressing incriminating statements made by defendant is affirmed where a reasonable person in defendant's position would have considered her freedom of movement to be restricted to a degree consistent with formal arrest, and thus she was in custody for Fifth Amendment purposes and should have been advised of her Miranda rights.
http://ca10.washburnlaw.edu/cases/2007/12/06-5223.pdf
State v. Woolverton, 284 Kan. 59, 159 P.3d 985 (2007). Defendant and his baby's mama became involved in a telephone disagreement when defendant was late for visitation. Defendant, who was in Missouri, called the baby's mama in Overland Park and called her a "fucking whore" and threatened to "fucking kill her." He was convicted of criminal threat and phone harassment. On appeal the Supreme Court held that (1) defendant's prior criminal threat conviction was improperly admitted at trial but the error was harmless; (2) Kansas had jurisdiction to prosecute even though the threats were uttered in Missouri and (3) no Miranda violation occurred because defendant was not in custody when interviewed in the stairwell of his apartment, even though the detectives had stated they would seek a warrant if he did not cooperate. Detectives informed him that he would not be arrested and could return to his apartment after the interview.
http://www.kscourts.org/kscases/supct/2007/20070608/93751.htm
United States v. Lara-Garcia, ___ F.3d ___ (10th Cir. No. 06-4155, filed 3/7/2007). A federal agent's failure to provide a lawfully detained suspect a Miranda warning prior to inquiring about his immigration status does not require suppression of that status where fingerprint evidence subsequently confirms such status.
State v. Durham, ___ Kan.App.2d ___, ___ P.3d ___ (No. 97236, filed 12/14/07). While in custody but before entering his plea, Durham swallowed one or two razor blades and was transported from Lyon County to the Kansas University Medical Center for treatment. Lyon County Sheriff's Department officers accompanied Durham during transport to the Medical Center and guarded him during his treatment, incurring overtime salary and lodging expenses. The district court ordered Durham to pay total restitution of $22,952.43, which included a $20 bank fee to the victim of the forgery, $21,319.69 for medical expenses, $1,336.37 for the officers' overtime expenses, and $296.37 for the officers' lodging expenses. The Court of Appeals held the district court had statutory authority pursuant to K.S.A. 2006 Supp. 21-4603d(a)(8) to order Durham to pay medical expenses in addition to the $20 bank fee, but reversed the order to pay resitituion for overtime and lodging for the officer. It said the terms "costs" and "expenses" as used in K.S.A. 2006 Supp. 21-4603d(a)(8) are redundant, and that overtime and lodging expenses are not "medical costs or expenses."
http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2007/20071214/97236.htm
In Re K.M.H., ___ Kan. ___, ___, ___ P.3d ___ (No. 96,102, filed 10/26/2007). "Generally speaking, mere ignorance of the law is no excuse for failing to abide by it. State ex rel. Murray v. Palmgren, 231 Kan. 524, 536, 646 P.2d 1091 (1982)."
http://www.kscourts.org/Cases-and-Opinions/opinions/supct/2007/20071026/96102.htm
Search and Seizure
State v. Henning, ___Kan.App.2d ___(No. 98,188, 11/30/07) In 2006 the Kansas legislature amended K.S.A. 22-2501(c) to allow a search incident to arrest for evidence of "a" crime as opposed to evidence of "the" crime. Six days after the statutory amendment, a deputy saw Henning coming out of a convenience store, and seemed to recall he had a warrant. The deputy approached Henning after he was seated in the passenger side of a vehicle, verified the warrant and arrested Henning. The deputy then searched the car incident to arrest and found amphetamine and paraphernalia in the vehicle. Henning argued "a" crime meant only "an identified crime for which the officer has probable cause to believe occurred." The Court held that "a" crime means "any" crime, and upheld the statute as constitutional. A good review of the legislative history of K.S.A. 22-2501(c) and the case law on search incident to arrest.
http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2007/20071130/98118.htm
State v. Fisher, 283 Kan. 272, 305, 154 P.3d 455 (2007). The smell of ether may be considered with other evidence in the totality of the circumstances for determining whether probable cause exists.
State v. Fewell, 37 Kan.App.2d 283, 152 P.3d 1249 (2007), affirmed ___ Kan. ___, ___ P.3d ___ (No. 95041, filed 05/30/08). Trooper Engholm stopped a car for speeding and smelled the odor of burnt marijuna coming from the passenger side of the vehicle. Engholm , an 11-year veteran, had the driver Fewell, step out and meet him at the back of the vehicle. Fewell initially denied any knowledge of the source of the smell, but later admitted the passenger smoked a blunt. The passenger told Engholm that he had smoked all the marijuana. Engholm searched the passenger and discovered three bags of marijuana and $1000 in cash. At some point Fewell requested he be allowed to leave and pick up the passenger's girlfreind. Engholm then searched Fewell and found a switchblade, a bent spoon and a glass pipe. After back up arrived, Enholm found crack in Fewell's right hand. No more drugs were discovered duing a search of the vehicle. Fewell alleges there was no probable cause to search him. The Court of Appeals, Judge Greene dissenting, disagreed, finding the odor of burnt marijuana established probable cause and exigent cirumstances existed for the search because Engholm was alone, the passenger wanted to leave, and evidence may have disappeared if Fewell had been allowed to leave.
http://www.kscourts.org/Cases-and-Opinions/opinions/supct/2008/20080530/95041.htm
State v, Marx, ___ Kan.App.2d ___, ___ P.3d ___ (No. 98.059, filed 10/26/2007). A motor home passed an officer sitting beside the highway. A hubcap came off the motor home. The officer retrieved the hubcap, then caught up with the motor home intending to stop it to return the hubcap. The officer saw the motor home cross the fog line, then overcorrect and cross the centerline. The officer stopped the motor home, and then smelled marijuana. After turning the stop back into a voluntary encounter, the officer asked for and was denied consent. He then stated he was going to run his dog around the outside. The driver got back into the motor home despite instructions to stop. She later exited and was arrested. A search of the motor home's interior and septic tank yielded drugs and paraphernalia. The occupants moved to suppress, arguing there was no reasonable suspicion for a stop. The Court of Appeals disagreed. It held that this was not a valid safety stop, but was a stop based on reasonable suspicion, declining to follow State v. Ross, 37 Kan.App. 2d 126, 149 P.3d 876, rev. denied 284 Kan. ___ (2007), and instead chose to follow 10th Circuit precedent.
http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2007/20071026/98059.htm
State v. Thompson, ___ Kan. ___, ___ P.3d ___ (No. 94,254, filed 9/7/2007), reversing State v. Thompson, 36 Kan.App.2d 252, 138 P.3d 398 (2006). In an almost textbook "turn a traffic stop back into a voluntary encounter" case, an officer stopped Thompson for a faulty headlight. The officer called for a back, telling the back officer he intended to seek consent to search the vehicle. Once the back arrived, the contact officer issued Thompson a verbal warning, returned the driver's license and insurance documents and told the driver to "have a good day." Although the officer testified that he then started to walk away but returned within a second or two, the video tape showed that the officer did not leave the vicinity of the defendant after telling him to have a good day, but rather, immediately after the defendant had stated thank you to the officer, the officer asked Thompson if he could ask him some additional questions, which eventually resulted in Thompson giving consent. The officer found drug paraphernalia and finished methamphetamine in powder form. Thompson later gave written consent to search his garage, where a host of additional manufacturing paraphernalia was found. Thompson alleged his consent was coerced. The Court of Appeals agreed, holding that failure to actually disengage at the conclusion of the traffic stop, and failure to turn off emergency lights on the patrol vehicle constituted continued detention exceeding the scope or duration necessary to effectuate the purpose of the traffic stop without reasonable suspicion. The Kansas Supreme Court reversed the Court of Appeals, holding that it had failed to properly apply the totality of the circumstances test.
http://www.kscourts.org/kscases/supct/2007/20070907/94254.htm
State v. Chilson, ___ Kan.App.2d ___, ___ P.3d ___ (2006). The district court erred in suppressing evidence on a consent search. Defendant was 22 years old and lived with his father. Officers were sent to a domestic at the residence, and father told officers to make the son leave. Following their domestic policy which required separation of the subjects, defendant was detained outside. Father gave consent to search the son's bedroom and bathroom, where officers found fragments of marijuana. The Court of Appeals held that in the absence an objection and in the absence of evidence that officers removed a non-consenting co-occupant to avoid possible objection to the search, the father's consent was valid. Cf. Georgia v. Randolph, 547 U.S. 103, 126 S.Ct. 1515, 164 L.Ed. 2d 208 (2006).
http://www.kscourts.org/kscases/ctapp/2007/20070824/96418.htm
United States v. Andrus, ___ F.3d ___ (10th Cir. No. 06-3094, filed 4/25/2007), rehearing en banc denied 8/24/07). In an unusual case dealing with third-party consent to search of a personal computer, the majority held that the third-party had apparent authority to consent based on what officers knew at the time. Officers developed 51-year old Ray Andrus as a suspect in a child pornography ring. They did not believe they had enough evidence to obtain a search warrant, but did a knock and talk at his house. His 91-year old father answered the door and gave officers consent to search Ray's bedroom and computer. The father owned the house, paid the cable bill which included internet access, and had an email address used on a child-porn site. Only after mirroring the computer's hard drive with EnCase, did the officers note the computer was password protected, but had found files suggestive of child pornography. They also later discovered that the computer, located in Ray's bedroom, was the only one in the house, the father had never been on the computer and no one else in the house used it. Someone contacted Ray Andrus and he arrived home and subsequently consented. He was later convicted, but challenged the initial search. The Circuit, one judge dissenting, held that based on this unique factual scenario, the father had apparent authority to consent to the search.
http://www.kscourts.org/ca10/cases/2007/08/06-3094.htm
United States v. Cos, ___ F.3d ___ (10th Cir. No. 06-2187, filed 8/21/2007). Defendant was convicted of being a felon in possession of a firearm. An ex-girlfriend told police that Cos threatened to kill her. Officers obtained an arrest warrant. Three weeks later, officers went to Cos's apartment in the mid-afternoon to serve the warrant. A 19-year old female friend of Cos answered the door. She had three young children with her at the time and was cooking on the stove. She said Cos had been there earlier, but wasn't there at the time. Officers asked if they could "take a look," and she said "yeah, go for it." One of the children had been in a bedroom, and kept looking towards the bedroom. Believing someone might be present, an officer drew his weapon and looked around the bedroom. He found a gun and holster under the bed. Officers then sought a search warrant. They contacted the apartment manager, who said Cos was the only one on the lease. They later found out the 19-year old female was only visiting to use the pool, and she denied living or staying there. Cos, who arrived later, told a slightly different story, stating he had a live-in girlfriend who had a key to his apartment, but officers never asked her name and couldn't say whether it was the 19-year old. The district court suppressed the evidence, holding that the arrest warrant did not authorize entry because officers had no reasonable belief Cos was there at the time; that the 19-year old had no actual authority to consent to entry; and she had no apparent authority because police did not ask enough questions. The court also held Leon did not excuse a warrantless entry because the officers were mistaken in their belief about apparent authority. The Circuit, one judge dissenting (on procedural grounds), affirmed.
http://www.kscourts.org/ca10/cases/2007/08/06-2187.htm
State v. Kelley, ___ Kan.App.2d ___, ___ P.3d ___ (No. 96,181, filed 7/27/2007). Officers placed signs on the highway stating, "Drug dog working ahead" and "Narcotics officers working ahead." They placed one officer in a lawn chair beside the highway to watch driver's reactions to these signs. Upon seeing the signs, defendant began reaching for the passenger side of the vehicle and while doing so, crossed the center line. The officer in the lawn chair notified other officers down the road who stopped the defendant. While running defendant's license, a drug dog alerted to the passenger door. Officers asked the driver to step out. He stated "no" and drove away. He was later stopped and drugs were found in the car. He appealed, claiming he was improperly convicted of felony obstruction based on the traffic infraction and claimed the evidence should have been suppressed. The Court of Appeals agreed that felony obstruction did not exist for a stop based on a traffic infraction (defendant was also convicted of attempting to elude), but disagreed the evidence should be suppressed. It held the dog sniff did not constitute a search and gave probable cause to search the car.
In Re J.M.E., ___ Kan.App.2d ___, ___ P.3d ___ (No. 97,780 filed 7/27/2007). The odor of burnt marijuana is reasonable suspicion to detain the occupants of a car and is probable cause to search a car. The car in this case was called in as a suspicious vehicle at the end of a dead-end road. An officer pulled up and saw the back-up lights come on. She then activated her emergency lights to let the driver know she was there. She approached the vehicle, and when the driver rolled down the window, she smelt the odor of burnt marijuana. The district court suppressed the evidence, finding no valid reason for the stop based on State v. McKeown, 240 Kan. 5406, 819 P.2d 644 (1991). The Court of Appeals reversed, finding initially there was no stop and, even if it was, it was a valid community caretaking function, and the odor of burnt marijuana justified detention and search of the car. It distinguished McKeown on the basis that it involved a stop of a moving vehicle that had initially been called in as a parked stationary vehicle.
http://www.kscourts.org/kscases/ctapp/2007/20070727/97780.htm
Callahan v. Millard County, ___ F.3d ___ (10th Cir. No. 06-4135, unpublished opinion filed 7/17/2007). In a civil rights action arising from a police raid of plaintiff's home, summary judgment for defendants is reversed in part and remanded where: 1) officers violated plaintiff's constitutional rights when they entered his home based on the invitation of an informant and without a warrant, direct consent, or other exigent circumstances; 2) the district court incorrectly determined that those rights were not clearly established, as there is no legal support for allowing an informant to summon backup officers to a home after the informant has been invited with consent; and 3) consequently the officers are not protected by qualified immunity.
http://www.kscourts.org/ca10/cases/2007/07/06-4135.htm
Brendlin v. California, 551 U.S. ___, 127 S.Ct. 2400, 168 L.Ed.3d 132 (2007). When police stop a car for a traffic offense, a passenger in the car is "seized" under the Fourth Amendment, and therefore has standing to object to the legality of the stop. Bruce Brendlin was a passenger in a car driven by Karen Simeroth when she was the subject of a traffic stop by a County Deputy Sheriff. The deputy stopped the car to ensure the temorary registration permit matched the vehicle. The deputy recognized Brendlin as a parole violator, and eventually ordered him out of the car at gunpoint. During the stop, the Deputy discovered drugs and drug paraphernalia in the car and on Brendlin. Brendlin was charged with manufacturing methamphetamine and moved to suppress the evidence on the grounds that the original traffic stop was unreasonable, and therefore in violation of his Fourth Amendment rights. The trial court denied his motion, and the California Supreme Court upheld the denial on the basis that Brendlin had not been "seized" under the meaning of the Fourth Amendment, and thus could not challenge the stop. The Supreme Court held that under the circumstances, "any reasonable passenger would have understood the police officers to be exercising control to the point that no one in the car was free to depart without police permission."
http://www.law.cornell.edu/supct/html/06-8120.ZO.html
United States v. Barrows, ___ F.3d ___ (10th Cir. No. 06-6274, filed 4/3/2007). Mr. Barrows shared a workspace with the city clerk in an open area of the city hall. Although a counter cordoned off their common work area from the general public, Mr. Barrows and the city clerk enjoyed little privacy. Other city employees regularly entered their space to use the city's fax machine and photocopier, which were located approximately a foot from Mr. Barrows's and the city clerk's desk. Mr. Barrows and the city clerk shared a computer in addition to desk space, and both used it to access city records and programs. They could not, however, use the computer simultaneously, so Barrows brought his personal computer to work and hooked it up to the city network. He did not password protect the computer or its files. One day a computer-savvy reserve police officer was assisting the city clerk with computer issues and found child pornography on Barrow's computer. He obtained a warrant and searched the hard drive. Barrows contends the evidence should have been suppressed. The Circuit disagreed, holding that Barrows's failure to password protect his computer, turn it off, or take any other steps to prevent third-party use did not exhibit a subjective expectation of privacy, and even if he did, it was unreasonable.
http://www.kscourts.org/ca10/cases/2007/04/06-6274.htm
United States v. Freeman, ___ F.3d ___ (10th Cir. No.05-3437 filed 3/8/2007). In a parolee search case, denial of a motion to suppress evidence resulting in a plea to being a felon in possession of a firearm is reversed where: 1) the search at issue was not valid without reasonable suspicion; 2) under the totality of the circumstances, officers did not have a reasonable suspicion to search defendant's home without consent, without the presence of a parole officer, and in violation of Kansas Department of Corrections rules governing parolee searches; and 3) the search could not be upheld as a protective sweep.
http://www.kscourts.org/ca10/cases/2007/03/05-3437.htm
United States v. Engles, ___ F.3d ___ (10th Cir. No. 06-5076, filed 3/30//2007). An Oklahoma officer had cited the defendant for driving while suspended. An informant later told the officer that he failed to detect a large amount of methamphetamine in the defendant's car on that stop.