2017 Case Update List

January 1, 2017 through December 31, 2017 (or thereabouts)

Quick Links to prior year lists.

Full text of United States Supreme Court decisions.

Full text of 10th Circuit decisions.

Full text of Kansas Appellate decisions.

First Amendment

Packingham v. North Carolina, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 15-1194, 06/19/17). Conviction under a North Carolina law that makes it a felony for a registered sex offender 'to access a commercial social networking Web site where the sex offender knows that the site permits minor children to become members or to create or maintain personal Web pages,' N. C. Gen. Stat. Ann. sections14-202.5(a) and (e), is reversed where the North Carolina statute impermissibly restricts lawful speech in violation of the First Amendment. Even assuming that the statute is content neutral and thus subject to intermediate scrutiny, the provision is not narrowly tailored to serve a significant governmental interest.

Matal v. Tam, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 15-1293, 06/19/17). In a trademark case in which the lead singer of the rock group 'The Slants' chose this moniker in order to 'reclaim' the term and drain its denigrating force as a derogatory term for Asian persons, and then sought federal registration of the mark 'THE SLANTS,' the en banc Federal Circuit's judgment overruling The Patent and Trademark Office (PTO)'s denial of the application under the Lanham Act's disparagement clause, is affirmed where: 1) the disparagement clause applies to marks that disparage the members of a racial or ethnic group; and 2) the disparagement clause violates the First Amendment's Free Speech Clause.

National Labor Relations Board v. Pier Sixty, LLC, ___ F.3d ___ (2d Cir. No. 15-1841-ag (L), filed 04/21/17). Pier Sixty, a catering company in New York City, fired Hernan Perez for posting profane comments about his supervisor days before a union vote. Perez was upset with Robert McSweeney for chiding him at work for "chitchatting." Perez took it out on McSweeny that day with this Facebook post:

 

"Bob is such a NASTY MOTHER F----- don't know how to talk to people!!!!!! F--- his mother and his entire f------- family!!!! What a LOSER!!!! Vote YES for the UNION!!!!!!"


The employees voted for the union, and Perez was fired soon after. He filed a complaint with the NLRB, and an administrative law judge ruled in his favor, finding that the employer had wrongly fired Perez and violated employee rights to talk about union organization. The 2d Circuit agreed. Among other reasons, the appellate panel noted that the employer had tolerated profanity in the workplace for years. While it said that the Facebook post was "vulgar and inappropriate," it was not beyond the protections of the National Labor Relations Act and Perez should not have been fired under the "totality of the circumstances." The Court did note that "this case seems to us to sit at the out-bounds of protected, union-related comments."

Turner v. Lieutenant Driver, ___ F.3d ___ (5th Cir. No. 16-10312, filed 02/16/17). Turner was video recording a Fort Worth police station from a public sidewalk across the street. Two officers approached and asked him for identification. Turner refused to identify himself, and the officers ultimately handcuffed him and placed him in the back of a patrol car. The officers' supervisor arrived on scene and Turner was released. Turner filed suit against all three officers and the City of Fort Worth under 42 U.S.C. § 1983, alleging violations of his First and Fourth Amendment rights. The district court granted each officers' motion to dismiss based on qualified immunity. The Circuit affirmed on the First Amendment question, holding that in light of the absence of controlling authority and the dearth of even persuasive authority, there was no clearly established First Amendment right to record the police at the time of Turner's activities. However, for future cases, there is a First Amendment right to record the police, subject only to reasonable time, place, and manner restrictions. On Turner's pre-handcuffing Fourth Amendment claim, the officers are entitled to qualified immunity because there was reasonable suspicion to detain him. However, there was no probable cause to arrest him, so officers are denied qualified immunity on that issue. One judge dissented on that issue, noting that extending an investigative detention because the detained individual “asked for a supervisor to come to the scene,” is not clearly established as a violation.

Helget v. City of Hays, Kansas, ___ F.3d ___ (10th Cir. No. 15-3093, filed 01/04/17). Former Hays Police Department Officer Blaine Dryden filed a lawsuit against the City of Hays, City Manager Toby Dougherty and then-Chief of Police James Braun. Dryden and claimed that defendants had fired him in retaliation for union activities. A former secretary, Firma Helget, provided Dryden with an affidavit saying she had been instructed to not order a ballistic vest for Dryden, and that Dryden was known for union organizing. The affidavit caused her superiors to lose trust in her, undermining the department’s operations and she was fired in 2012. Helget sued, claiming her termination violated her First Amendment rights. The 10th Circuit affirmed summary judgment for the defendants, holding the “operational interests” of the city as a public employer outweigh the free speech rights of the former secretary.

Second Amendment

United States v. Pauler, ___ F.3d ___ (10th Cir. No. 16-3070, filed 05/23/17). Defendant was convicted in 2009 of violating a Wichita, Kansas municipal domestic battery ordinance for punching his girlfriend. He was later charged with violating 18 U.S.C. § 922(g)(9). The 10th Circuit said a municipal misdemeanor does not qualify as a “misdemeanor under . . . State . . . law” for purposes of defendant's indictment.

Norman v. Florida, ___ Fla. ___, ___ P.3d ___ (Fl. S.Ct. No. SC15-650, filed 03/02/17). Florida allows concealed carry with a license, but prohibits open carry by statute. See Fl. Code Section 790.053. Its state constitution protects the right to bear arms, but says the "manner of bearing arms may be regulated by law." Norman alleged he should not have been convicted of open carry. The Florida Supreme Court disagreed. It held the state has an important interest in regulating firearms as a matter of public safety, and that Florida’s Open Carry Law is substantially related to this interest. It held that Florida’s Open Carry Law violates neitherthe Second Amendment to the United States Constitution, nor article I, section 8, of the Florida Constitution.

Holly v. UPS Supply Chain Solutions, ___ F.3d ___ (6th Cir. No. 17c0135n.06, 03/02/17)(unpublished). UPS -SCS fired Holly after he moved his lawfully possessed handgun from his own car to a coworker's car while Holly's car was in the shop. Holly alleged that the termination violated his rights under Kentucky state law and the 2d Amendment. "While it is undisputed that Holly possessed a gun in his vehicle on UPS SCS premises--which is gun possession protected under Kentucky law--it is likewise undisputed that he removed the gun from his vehicle and placed it in another employee's vehicle--which is not [protected] gun possession."

Kolbe v. Hogan, ___ F.3d ___ (4th Cir. No. 14-1945, filed 02/21/17). Maryland's Firearm Safety Act of 2013 (the “FSA”), bans the AR-15 and other military-style rifle s and shotguns (referred to as “assault weapons”) and detachable large-capacity magazines. "The FSA contravenes neither the Second Amendment nor the Fourteenth. We diverge from the district court on one notable point: We conclude — contrary to the now vacated decision of our prior panel — that the banned assault weapons and large-capacity magazines are not protected by the Second Amendment. That is, we are convinced that the banned assault weapons and large-capacity magazines are among those arms that are “like” “M-16 rifles” — “weapons that are most useful in military service” — which the Heller Court singled out as being beyond the Second Amendment’s reach. See 554 U.S. at 627 (rejecting the notion that the Second Amendment safeguards “M-16 rifles and the like”). Put simply, we have no power to extend Second Amendment protection to the weapons of war that the Heller decision explicitly excluded from such coverage. Nevertheless, we also find it prudent to rule that — even if the banned assault weapons and large-capacity magazines are somehow entitled to Second Amendment protection — the district court properly subjected the FSA to intermediate scrutiny and correctly upheld it as constitutional under that standard of review."

Fourth Amendment

State v. Lewis, ___ Kan.App.2d ___, ___ P.3d ___ (No. 115285, 06/16/17). After a traffic stop, cops found cocaine in Lewis's car console. Lewis appealed from his conviction alleging he was detained too long. The Court of Appeals agreed. The facts supporting the stop were a pink Cadillac crossed the centerline. The officer had an anonymous tip that the driver of the pink Cadillac was selling drugs out of the vehicle. The stop had begun at 1:24 a.m. and ended 21 minutes later at 1:45 a.m. The officer had just completed his traffic investigation when the K-9 unit arrived. Defendant, who was somewhat resistive during the stop, was ordered out of the vehicle "for safety reasons." The Court of Appeals held the anonymous tip did not provide reasonable suspicion, and the dog sniff improperly extended the time of the traffic stop. Conviction reversed.

State v. Baker, ___ Kan. ___, ___ P.3d ___ (No. 111915, 06/09/17). Lawrence officers were traveling to court in an unmarked police vehicle when they noticed Baker riding his bicycle and wearing a blue drawstring backpack. Officers called for assistance because they knew Baker had outstanding arrest warrants and was a suspect in other cases. Officers saw Baker's bike outside a store. They found Baker inside the store holding the same backpack, which he tried to ditch when officers approached. Officers arrested him, then searched the backpack, finding drugs. Curiously, the state apparently never argued it was a valid search incident to arrest. The Court held that officers reasonably seized Baker's backpack but the State presented no evidence of an established inventory routine that would have inevitably led to the opening of the containers in which the evidence was found. Therefore, it held the State did not prove by a preponderance of the evidence that the contraband would have been inevitably discovered and the district court erred in denying Baker's motion to suppress.

Los Angeles County, CA v. Mendez, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 16-369, filed 05/30/17). Officers had an arrest warrant and believed the target was at a residence. Two officers entered the back yard where they saw a small plywood shack. The deputies entered the shack without a search warrant, and without knocking and announcing their presence. Inside the shack, the deputies saw the silhouette of a man pointing, what appeared to be a rifle, at them. The Deputies fired fifteen shots at the man, later identified as Mendez. Mendez and his wife both sustained gunshot wounds. The deputies later discovered that Mendez had been pointing a BB gun that he kept by his bed to shoot rats inside the shack. Mendez and his wife sued under 42 U.S.C. § 1983 claiming the deputies violated the Fourth Amendment by entering their dwelling without a warrant and then using excessive force against them. The district court held the warrantless entry into the shack violated the Fourth Amendment, as it was not supported by exigent circumstances or another exception to the warrant requirement. The court then concluded the deputies did not use excessive force in violation of the Fourth Amendment, as it was reasonable for the deputies to mistakenly believe Mendez’s BB gun was a rifle. Nonetheless, the court held that the deputies were liable for the shooting under the Ninth Circuit’s provocation rule and awarded approximately four million dollars in damages. The Ninth Circuit affirmed. “[E]ven without relying on our circuit’s provocation theory, the deputies are liable for the shooting under basic notions of proximate cause,” which in the context of § 1983 should make officers responsible for the consequences of their actions. The United States Supreme Court reversed. The Fourth Amendment provides no basis for the Ninth Circuit’s “provocation rule, ” which is an unwarranted and illogical expansion of Graham. The provocation rule instructs courts to look back in time to see if a different Fourth Amendment violation was somehow tied to the eventual use of force, an approach that mistakenly conflates distinct Fourth Amendment claims. The proper framework is set out in Graham. To the extent that a plaintiff has other Fourth Amendment claims, they should be analyzed separately.

State v. Zwickl, ___ Kan. ___, ___ P.3d ___ (No. 113362, 05/05/17). Reno County deputies obtained a warrant to search defendant's vehicle for drugs after CIs informed police that Zwickl was driving to Colorado and returning with high-quality marijuana. Officers also performed some surveillance and did a couple of trash pulls. Officers recovered three pounds of marijuana from the vehicle. Zwickl alleged the warrant affidavits failed to establish probable cause. The district court agreed and suppressed the evidence, rejecting a good faith argument. The Court of Appeals reversed on the good faith issue, finding it would be reasonable for officers to rely on the issuance of the warrant. The Supreme Court agreed with the Court of Appeals. With corroborated CI tips and some evidence of marijuana dealing coming from the trash pulls, there was probable cause to believe the Mustang probably would contain marijuana upon its return to Hutchinson.

United States v. Llufrio, 2017 WL 604009 (N.D. Ill. Feb. 15, 2017). FBI agents violated the Fourth Amendment when they secretly recorded a suspect, Jorge Llufrio, who was alone in an interview room and was whispering to himself. The government suspected Llufrio of drug distribution. He was arrested and taken to an interview room. There was no sign that warned that there were cameras in the interview room, and FBI agents never told Llufrio whether they were recording him. After FBI agents placed Llufrio alone in the interview room, they began recording him at 5:24 p.m., and Llufrio began talking to himself one minute later. Llufrio was already sitting in the interview room when the FBI began recording. Shortly after the FBI agents left the interview room, Llufrio began mumbling to himself and encouraging himself that things were going to work out. Through unintelligible speech and mumbling, Llufrio provided himself with self-encouragement. After approximately ten minutes, Llufrio looked up, saw something, pointed, and exclaimed, "that's a f***ing camera for recording." Nevertheless, Llufrio continued mumbling, whispering, and looked up at what he thought was the camera at least once more. When the government tried to use the tapes at trial, the district court held that the Government could use the video images of Llufrio while he was in the FBI interview room but not the recorded audio statement that Llufrio made while talking to himself because Llufrio had a subjective expectation of privacy in his whispers to himself. The Court said:

 

If the police truly believe that no reasonable person would have an expectation of privacy in such a room, the recording equipment should not need to be disguised. Indeed, luring arrestees into a false sense of security in a locked room with no law enforcement officers and with no visible working audio-recording device-but with a concealed recording device-suggests that, in such a room, there is a reasonable expectation of privacy. There were no signs that indicated the FBI was recording Llufrio's statements with a hidden recorder. Instead, agents left him alone in a room with the door shut. The FBI agents closed the door to the interview room and then began recording. The Court finds that society would recognize an expectation of privacy in the police interview room under these circumstances.


Llufrio, 2017 WL 604009, at * 9 (internal quotations and citations omitted).

State v. Howard, ___ Kan. ___, ___ P.3d ___ (No. 110439, filed 03/10/17), affirming 51 Kan.App.2d 28, 339 P.3d 809 (No. 110439, filed 12/05/14). Officers stopped Howard's vehicle for a traffic violation and arrested him on warrants. Searching the car after seeing drug paraphernalia in plain view, officers found an AK-47 pistol and the State later charged Howard with criminal possession of a firearm, believing he was prohibited from possessing a firearm because he had pled guilty to first-degree burglary in Missouri in 2006. Howard argued he was not prohibited from possessing a firearm because he received and completed probation for a suspended imposition of sentence (SIS) in Missouri (which is not considered a conviction there), that the police discovered the gun during an unlawful search of his vehicle, and that the district court erred in excluding evidence that he lawfully purchased the AK-47 in Missouri after reporting his criminal background for a federal background check. The Court held Howard was prohibited from possessing a firearm in Kansas because the Missouri court found him guilty of first-degree burglary and in Kansas a person is "convicted" when a sentencing court makes an adjudication of guilt. See K.S.A. 2013 Supp. 21-5111(d). Second, the State lawfully searched Howard's vehicle. The police are not required to obtain a warrant to conduct a search if there are exigent circumstances and probable cause to search. Here the mobility of Howard's vehicle created exigent circumstances, and the torn plastic baggie and the officer's training and experience regarding such baggies created probable cause to search under the automobile exception. Third, the district court did not err in excluding evidence that Howard lawfully purchased the AK-47 in Missouri. The evidence was irrelevant because criminal possession of a firearm is a general-intent crime and the State had to prove only that Howard possessed the firearm, not that he knew he was considered a convicted felon in Kansas. Rosen (and Johnson) dissented, finding that a plastic baggie does not arise to probable cause.

United States v. Lopez, 2017 U.S. App. LEXIS 3475 (10th Cir. No. 15-3130, 02/2717). A trooper six months out of the academy stopped a car on US 54 near Wichita for going 79 in a 65 mph zone. Two Hispanic females were in the car, which turned out to be a rental due back in California the next day. The women claimed they were coming from California and headed to either Kansas City or Nebraska to rescue the passenger's sister from an abusive boyfriend. The trooper asked if they had any drugs in the car, which they denied, then further inquired about travel plans after the passenger said she needed some marijuana because the trip was taking too long. Then, after returning the driver's documents and telling the ladies to have a safe trip, the trooper did a trooper two-step and asked for consent to search the car. The ladies denied consent. The trooper detained the car for 20 minutes to await a drug-sniffing dog, which hit on the passenger's purse. A blue cooler in the back seat contained four pounds of methamphetamine. The district court denied suppression motions. The Circuit reversed, holding the trooper did not have reasonable suspicion to prolong the stop to await the drug dog. Nervousness, a request not to look at the backseat because it was messy even though it was not and implausibility of purported travel plans do not arise to reasonable suspicion.

In re Application for a Search Warrant, ___ F.Supp. ___ (U.S.D.C. E.D. Ill. No. 17M081, filed 02/16/17. The government sought a warrant for child porn which sought to compel any individual who is present at the subject premises at the time of the search to provide his fingerprints and/or thumbprints “onto the Touch ID sensor of any Apple iPhone, iPad, or other Apple brand device in order to gain access to the contents of any such device." Primarily because the warrant affidavit lacks any detailed information about the resident(s) of the subject premises other than the name of the individual who is likely residing there, this aspect of the search warrant application is denied. The warrant does not establish sufficient probable cause to compel any person who happens to be at the subject premises at the time of the search to give his fingerprint to unlock an unspecified Apple electronic device. And while there isn’t any particular privacy expectation in a fingerprint, it violates the Fourth Amendment to detain persons without reasonable suspicion and the application raises concerns under the Fifth Amendment's

protection prohibiting compelled self-incrimination. Although fingerprints in an of themselves are not testimonial, “[b]y using a finger to unlock a phone's contents, a suspect is producing the contents on the phone. With a touch of a finger, a suspect is testifying that he or she has accessed the phone before, at a minimum, to set up the

fingerprint password capabilities, and that he or she currently has some level of control over or relatively significant connection to the phone and its contents.” While fingerpint exemplars can be compelled, it is different to using a fingerprint to access a database of someone's most private information.

Estate of Redd v. Love, 848 F.3d 899 (10th Cir. No. 16-4010, 02/13/17). Federal Bureau of Investigation (FBI) and Bureau of Land Management (BLM) agents served a warrant at Dr. Redd's home as part of an investigation into the taking of Native American artifacts from federal lands in southern Utah. They were dressed in standard raid garb (soft body armor and carrying firearms). Dr. Redd was not home when officers first entered, but arrived home and was arrested in his driveway. Dr. Redd and his wife were both arrested and booked and released that evening. Dr. Redd committed suicide the next day. His estate sued the law enforcement agencies alleging they used excessive force in serving the warrant. The district court dismissed all of the Estate’s claims and granted Agent Love qualified immunity on the Estate’s Fourth Amendment excessive use of force claim. The Estate appealed, arguing that Agent Love was not entitled to qualified immunity. The Circuit affirmed the district court's decision, finding While the court left open the possibility that sending a large number of agents to execute a search warrant and arrest for a nonviolent crime might amount to excessive force, that was not the case here. The court concluded that the need to search an expansive home for small artifacts, as well as legitimate concern for officer safety justified the number of agents (22) executing the search and arrest warrants at the Redd’s house. The court further held that Agent Love did not act with excessive force toward Dr. Redd in deploying the agents in SWAT-like gear. First, this decision rested outside Agent Love’s authority, as BLM and FBI policy required the agents to carry a firearm and wear soft body armor when executing warrants such as the ones executed in this case. Consequently, the court held that Agent Love’s conduct, deploying twenty-two agents, wearing soft body armor and carrying firearms in compliance with agency policy, was objectively reasonable under the circumstances.

State v. Evans, ___ Kan.App.2d ___, ___ P.3d ____ (No. 116022, filed 02/10/17, unpublished). Judge Sutherland did not err in granting defendant's motion to suppress. Lenexa officers made a pretextual traffic stop because they suspected Evans of using and/or selling drugs. However, they immediately turned the traffic stop into a drug investigation. "An investigating officer must diligently pursue his or her investigation and the tasks associated with the traffic stop for the traffic stop to provide the basis for further investigatory detention. See State v Wendler, 47 Kan. App. 2d 182, 190, 274 P.3d 30 (2012). Here, officers had already determined there were no wants or warrants for Evans when they ran his license plate through dispatch before he even left the Shawnee address. The officers did not diligently pursue anything regarding the traffic issues once they stopped Evans. "An officer may expand the investigative detention beyond the duration necessary to fulfill the purpose of the initial stop only if there is an objectively reasonable and articulable suspicion that criminal activity was or is taking place." State v. Jones, 300

Kan. 630, 641, 333 P.3d 886 (2014)."

United States v. Hernandez, 847 F.3d 1257 (10th Cir. No. 15-1116, 02/09/17). Denver officers pulled up alongside Hernandez who was walking down the street wearing two backpacks. Officers suspected him of possibly stealing materials from a construction site adjacent to where he was walking. After a couple minutes of rolling conversation, officers asked Hernandez to stop and talk to them. He agreed to do so. Officers then discovered he had a warrant, and he was also a felon in possession of a gun. The government charged Hernandez with being a felon in possession of a firearm. Hernandez filed a motion to suppress the firearm, arguing the officers did not have reasonable suspicion to detain him. The Tenth Circuit Court of Appeals affirmed district court decisions that officers seized Hernandez when Hernandez complied with the officer’s request and stopped to talk. The court added that a reasonable person would have believed that compliance with the officer’s “request” was not optional. The court also agreed with the district court’s holding that when the officers seized Hernandez, they did not have reasonable suspicion to believe he was involved in criminal activity. While the construction site might have been the target of previous thefts, the court was not persuaded that Hernandez’s all black clothing, two backpacks, or failure to use the sidewalk on the other side of the street established reasonable suspicion to believe that he was currently engaged in criminal activity.

Washington v. Unified Gov. of Wyandotte County, Kan., ___ F.3d ___ (10th Cir. No. 15-3181 filed 02/06/17)(summary by Fisher Patterson). The Tenth Circuit held a state employer had a "special interest" sufficient to justify its random drug testing of juvenile detention officers. Roberick Washington was a juvenile lieutenant at the Wyandotte County Juvenile Detention Center. Washington's job duties included overseeing juvenile detention officers, overseeing juveniles on "the floor," and intervening if fights broke out. Wyandotte County had a random drug testing policy for employees in "safety sensitive" positions, including the juvenile lieutenant position. In 2012, Washington was terminated after testing positive for cocaine during a random drug test. Washington filed suit, arguing, among other things, that the drug test was an unauthorized search in violation of 42 U.S.C. § 1983. The district court granted the defendants summary judgment. Washington appealed. The Tenth Circuit agreed with Washington's contention that when a government employer requires its employees to submit to a urinalysis test for the purposes of detecting illegal drug use, the test is a search subject to the Fourth Amendment, and must be reasonable. Ordinarily, the court explained, a search must be based on individualized suspicion of wrongdoing to satisfy the Fourth Amendment's reasonableness requirement. However, when the government asserts a "special need" beyond ordinary crime detection, suspicionless drug testing is reasonable if the government's interests outweigh the individual's privacy interests. To determine whether the government has demonstrated a "special need," courts review two factors: (1) whether the testing program was adopted in response to a documented drug abuse problem or whether drug abuse among the target group would pose a serious danger to the public; and (2) whether the testing scheme would effectively detect and deter drug use. In Washington's case, the Tenth Circuit held that Wyandotte County had demonstrated a "special need" because Washington's position involved serving as guardian for minors in the County's care. The Court also found that the County's interest in assuring that its juvenile lieutenants were not using illegal drugs while interacting with and caring for juveniles outweighed Washington's diminished privacy interests as a correctional officer, which were only minimally invaded by the drug test. Having determined that the County's interests outweighed Washington's, the Tenth Circuit affirmed summary judgment. The court was careful to note, however, that "[t]he balance we strike today is specific: the government's interests, while important in this case, might not apply to all employees in a correctional facility."

United States v. Robinson, ___ F.3d ___ (4th Cir. No. 14-4902, en banc, filed 01/23/17). A law enforcement officer is justified in frisking a person whom the officer has lawfully stopped and whom the officer reasonably believes to be armed, regardless of whether the person may legally be entitled to carry the firearm. The risk of danger to a law enforcement officer created by the forced stop of a person who is armed is not eliminated by the fact that state law authorizes persons to obtain a permit to carry a concealed firearm. Police received an anonymous tip the passenger in a car loaded a firearm and stuck it in his pocket. Officers stopped the car and patted down the passenger, removing his gun. The passenger was a convicted felon, but alleged police did not have probable cause to stop and later frisk him because he may have had a concealed carry permit. The Fourth Amendment does not “require police officers [to] take unnecessary risks in the performance of their duties.” Terry v. Ohio, 392 U.S. 1, 23 (1968).

United States v. Juszczyk, ___ F.3d ___ (10th Cir. No. 15-3323, 01/03/17). Tina Giger gave Juszczyk permission to repair his motorcycle in her backyard. A concerned neighbor contacted the police who went to investigate. When officers responded, Juszczyk threw his backpack onto the roof of Giger’s house. Officers retrieved the backpack and searched it. The backpack contained methamphetamine, a firearm, and documents bearing Juszczyk’s name. Officers arrested Juszczyk.

Juszczyk argued that the warrantless search of his backpack violated the Fourth Amendment. The court disagreed, holding that Juszczyk lost any reasonable expectation of property he had in the backpack when he threw it on the roof of Giger’s house. As a result, the court found that the backpack was abandoned property; therefore, the officers did not violate the Fourth Amendment

when they searched it.

Fifth Amendment

Sessions v. Morales-Santana, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 15-1191, 06/12/17). The Second Circuit's decision reversing the BIA and holding unconstitutional the differential treatment of unwed mothers and fathers in section 1409 of the Immigration and Nationality Act, is affirmed in part, reversed in part, and remanded. The gender line Congress drew is incompatible with the Fifth Amendment's requirement that the Government accord to all persons 'the equal protection of the laws'. This Court is not equipped to convert section 1409(c)'s exception for unwed U.S.-citizen mothers into the main rule displacing sections 1401(a)(7) and 1409(a), so it falls to Congress to select a uniform prescription that neither favors nor disadvantages any person on the basis of gender.

United States v. Apple Macro Computer, ___ F.3d ___ (3rd Cir. No. 15-3537, filed 03/20/17). Federal agents seized several devices pursuant to a search warrant issued in a child porn investigation. The target of the investigation was ordered to provide access to two hard drives "in a fully unencrypted state." Doe failed to do so and was held in contempt. The Magistrate Judge acknowledged Doe's Fifth Amendment objection but held that, because the Government possessed Doe's devices and knew that their contents included child pornography, the act of decrypting the devices would not be testimonial for purposes of the Fifth Amendment privilege against self-incrimination. The Circuit agreed, holding that under the “foregone conclusion” rule the Fifth Amendment "does not protect an act of production when any potentially testimonial component of the act of production—such as the existence, custody, and authenticity of evidence—is a “foregone conclusion” that “adds little or nothing to the sum total of the Government's information.” Here the government knew there was child porn on Doe's hard drives and phone because his sister reported that she had witnessed Doe unlock his Mac Pro while connected to the hard drives to show her hundreds of pictures and videos of child pornography. Forensic analysts who examined the phone also found an additional 2,015 videos and photographs in an encrypted application on Doe's phone, which Doe had opened for the police by entering a password. Because the existence of the evidence was a foregone conclusion, Doe's Fifth Amendment rights were not violated.

State v. Brown, ___ Kan. ___, ___ P.3d ___ (No. 111166, filed 01/20/17). Brown abused and killed a 14-month old child. Police wanted to question him, but Brown wanted to try to reach an attorney. Police offered him a phone, but Brown could not get a hold of his attorney. However, he voluntarily agreed to continue the interview and made incriminating statements. After conviction of various charges, his attorney tried to claim that Brown invoked. The district court disagreed and so did the Supreme Court. Police are free to interview a suspect who is in custody after the suspect waives Miranda rights. But if a suspect invokes one or more of those rights, such as the right to counsel, an interview must end. A suspect is not subject to further questioning until counsel has been made available—unless the suspect initiates further communication, exchanges, or conversations with police. Brown further initiated communication after he could not get a hold of his lawyer, so there was no Miranda violation.

State v. Guein, ___ Kan.App.2d ___, ___ P.3d ____ (No. 115426, filed 01/20/17)(pet. for review filed 02/15/17). Lenexa officers Weber and Larson thought they saw a drug deal going down at the Burger King at 1:30 a.m. The defendant Guein got out of a brown Chevy Caprice and into the passenger side of a blue Saturn Ion. The cops pulled into the parking lot and parked several cars away. Officer Weber walked up to the driver's side of the Ion and smelt marijuana. He got the driver out and searched him, but found nothing. Weber then got Guein out, patted him down, cleaned out his pockets, then asked him where his weed was. Guein eventually replied it was in his underwear and he produced it to Weber. Weber then handcuffed Geuin and put him in the back seat of the police car. Weber then gave Guien a "be straight with me speech," and later Mirandized him and got a confession that Guein was there to sell pot to the other party. The Court of Appeals agreed that Guien's initial statement that he had weed and it was in his underwear were admissible because Guien was not yet in custody, and agreed that once Guien admitted he had marijuana the search of his person was based on probable cause and exigent circumstances. But it reversed Judge McCarthy that Guien's post-Miranda statement should be suppressed It held that Weber's "don't fuck with me" warning would be interpreted by a reasonable person to be an implied threat of physical violence connected to answering the questions Weber would soon be asking in a way that conformed with Weber's understanding. This implied threat nullified the Miranda waiver. Gardner, J., dissents, and would hold that the post-Miranda waiver was voluntary. She feels the majority was too tightly wound in finding the officer's profanity resulted in coerciveness.

Sixth Amendment

State v. Williams, ___ Kan. ___, ___ P.3d ___ (No. 111046, 04/21/17). KBI agent Lind used an informant to meet with Defendant, a methamphetamine dealer. The CI was subpoenaed for trial but did not show up. The state played a 4-minute audio recording of the transaction between Lind and the Defendant. Defendant argued that the CI made testimonial statements on the recording and the lack of cross-examination violated his Sixth Amendment rights. The Supreme Court agreed. Two statements of an informant during a controlled law enforcement drug buy supporting the prosecution of the defendant in this case, recorded and played for the jury, were testimonial. Their content reinforced evidence of the identity of the seller and the substance purchased; it was not limited to context. The circumstances surrounding the statements also supported their testimonial nature. Admission of two testimonial statements by an informant without providing the defendant an opportunity to cross-examine the informant was error in this case, but it was

harmless. The Court cited the fact that Lind testified from his first-hand account of the transaction and affirmed based on "the overwhelming weight of the other evidence against Williams."

Eighth Amendment

Moore v. Texas, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 15-797, 03/28/17). Moore killed a store clerk during a botched robbery. He was convicted of capital murder and sentenced to death, despite his limited intellectual capabilities (IQ of about 70, depending on which test you use). Moore challenged his death sentence on the ground that he was intellectually disabled and therefore exempt from execution. The district court granted habeas relief, but the Texas Court of Criminal Appeals reversed based on precedent and older medical judgment. The Supreme Court reversed. Texas’ criminal-justice system "requires the intellectual-disability diagnoses of juveniles to be based on “the latest edition of the DSM.” 37 Tex. Admin. Code §380.8751(e)(3) (2016). Texas cannot satisfactorily explain why it applies current medical standards for diagnosing intellectual disability in other contexts, yet clings to superseded standards when an individual’s life is at stake."

Fourteenth Amendment

Nelson v. Colorado, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 15-1256, filed 04/19/17). Two Colorado citizens were convicted of sex crimes and ordered to pay costs, fees and restitution. Their convictions were later reversed, and the former inmates asked for reimbursement of the costs, fees and restitution they paid. A Colorado statute required a defendant to prove her innocence by clear and convincing evidence to obtain the refund of costs, fees, and restitution paid pursuant to an invalid conviction. The United States Supreme Court held that scheme does not comport with due process and denies defendants their newly refreshed presumption of innocence. Accordingly it reverse the judgment of the Supreme Court of Colorado denying the former inmates claims for refunds.

Brady/Giglio

State v. DeWeese, ___ Kan. ___, ___ P.3d ___ (No. 112372, filed 01/20/17). DeWeese and Heil killed Kristen Tyler because they believed Tyler stole his money and drugs. Heil cut a deal and was an important witness against DeWeese. A detective that worked on the case on her last day of work wrote a report that contained information that Heil was looking for an opportunity to rob Tyler and had threatened other people with a gun. Unbeknownst to the detective, the records managment system rejected the report due to errors and it did not get turned over to the defense until after the trial. DeWeese claimed a violation of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). The district court found that most of the information was known to the defense by other means, and held the report was not "sufficiently material to undermine the confidence and the verdict of this jury." The Supreme Court agreed. There was plenty of other evidence indicating that Heil was a "monster" when doing methamphetamine and that he had a motive to rob Tyler. The undisclosed evidence was merely cumulative.

Civil and Criminal Liability

Apodaca v. Willmore, ___ Kan. ___, ___ P.3d ___ (No. 111987, filed 04/14/17), affirming 51 Kan.App.2d 534, 349 P.3d 481 (No. 111987, filed 05/15/15). The Kansas Court of Appeals, as a matter of first impression, held the "firefighter's rule" applied to law enforcement officers, barring their negligence claims from injuries suffered while responding to emergencies in their official capacity. At 3:30 a.m., Mathew Willmore fell asleep while driving his F-150 pickup northbound on K-177, and rolled the truck across the median where it became disabled in the southbound lane of traffic. Officer Juan Apodaca responded to a dispatch call about the accident. As Officer Apodaca approached the scene at a high rate of speed, he observed a vehicle in the northbound lane with headlights and emergency flashers illuminated, approximately one mile away. Although Office Apodaca believed the illuminated vehicle was Willmore's, it was actually a witness's vehicle. Officer Apodaco did not see Willmore's disabled vehicle in the southbound lane of traffic, and subsequently collided with the vehicle at 104 miles per hour. When test results showed Willmore had a blood alcohol level of .103, Officer Apodaca sued Willmore for negligence. Willmore successfully moved for summary judgment under the "firefighter's rule," and Apodaca appealed to the Kansas Court of Appeals. On review, the Court of Appeals explained that under the rule adopted in Calvert v. Garvey Elevators, Inc., 236 Kan. 570, 694 P.2d 433 (1985), a firefighter generally cannot recover for injuries caused by the wrong that initially necessitated his or her presence at the scene of an emergency. Although the court recognized it had not previously decided whether the "firefighter's rule" also applied to law enforcement officers, it explained the general rationale behind the rule was that the general public should not be discouraged from calling emergency personnel because of a fear of incurring liability. The court concluded this same rationale should apply to law enforcement officers, supported by other jurisdictions' rulings on the issue. The court held that Apodaca's claims were barred by the firefighter's rule, and affirmed summary judgment in favor of Willmore. The Supreme Court, in a 4-3 decision, agreed, stating that applicaton of the rule "is the wisest course for Kansas, and we so hold. Not only is extension of the rule consistent with the common law and statutory law developed in the clear majority of our sister jurisdictions, it is also consistent with the public policy rationale that prompted this court to adopt the firefighter's rule in the first place." Justices Johnson and Stegall wrote spirited dissents. Justice Biles joined Justice Johnson's dissent.

Bennett and Montgomery v. State and Saleh, Shawnee County District Court Case No. 12C939 & 12C940. Bennett and Montgomery were injured after a collision with a car fleeing a chase initiated by Saleh, an employee of the Capitol Police, which is part of the Kansas Highway Patrol. The off-duty Saleh arranged for a license plate check to be conducted on a car he considered suspicious. When he learned the car had been reported stolen, on-duty Capitol Police were notified. They initiated the 1 minute, 42 second chase near S.W. 20th and Topeka Boulevard. The chase went east to S. Kansas Avenue and 20th, where driver Robert R. Horton ran a stop sign and turned south onto Kansas. The lawsuit petitions say Horton ran a red light at S. Kansas and 21st and continued southbound at speeds in excess of 100 mph before running a red light at S. Kansas and 29th and striking a pickup truck Bennett was driving eastbound on 29th, with Montgomery as his passenger. Update: In a rare loss for plaintiff's attorney Lynn Johnson, Judge Theis granted the defendants summary judgment on 02/23/17. “Plaintiffs’ claims fail from a lack of sufficient evidence of causation as a matter of law from any perspective or point in time from which Trooper Saleh’s conduct might rightfully be weighed against a standard of reckless disregard in his act of pursuit,” Theis wrote.

Arrington-Bey v. City of Bedford Heights, ___ F.3d ___ (6th Cir. No. 16-3317, 02/24/17)(unpublished). The Sixth Circuit ruled that LEOs have no obligation to transport delusional subjects to a hospital instead of to jail in the absence of evidence of special medical risks. Officers arrested the decedent for disturbing the peace at a big-box hardware store in Bedford Heights, OH. His mother took him there to collect his last paycheck after he’d been fired for skipping work. When a delay developed, the decedent began “kicking and throwing paint cans” and “talking a lot of gibberish.” Officer discovered the decedent was bipolar and had been off his medication for days or weeks. Officers delivered him to jail, where he died just over eight hours later, after he attacked correctional officers and was subdued. An autopsy showed that he “died as a result of a sudden cardiac event during a physical altercation in association with bipolar disease." The decedents mother sued the arresting officers. The district court denied qualified immunity and summary judgment to the officers and jailers. The Sixth Circuit reversed holding, “[T]here was no violation of a clearly established constitutional right, and the officers did not act with the recklessness that would permit them to be liable....” The Court acknowledged that a detainee has a constitutional right to “medical treatment for a serious medical need. But given the particulars of this case, the panel explained, there is no precedent that “clearly required [the officers at the initial scene] to do more than what they did—collect [the subject’s] pills, note his aggressive behavior and [that he] was bipolar and off his medications, and inform the jailers.... “In short, no clearly established law, here or anywhere else from what we’ve seen, required the arresting officers to drive [the suspect] to a hospital rather than the jail under these circumstances.” In conclusion, the panel noted, “Police officers face tough judgment calls about what to do with the mentally ill. Arrestees do not normally arrive at jail toting their medical records. Psychiatric problems do not always manifest themselves with clarity. And not even clear psychiatric problems always reveal their potential for serious harm—as here a heart attack. Perhaps those truths counsel in favor of more policies and training designed to minimize tragic injuries and deaths.... And perhaps police would be wise to err on the side of calling a doctor in cases like this one.” But that said, the Court said no constitutional or state law violations warranted money damages against the officers or their agency.

Carabajal v. City of Cheyenne, Wyoming, ___ F.3d ___ (10th Cir. No. 15-8139, filed 02/06/17). Officers attempted to stop Carabajal's car for a traffic violation. Carabajal continued driving for six blocks, but eventually pulled over. One of the back up officers placed himself in front of Carabajal's vehicle. Carabajal then opened his door, stuck his foot outside, then stepped back inside and closed the door. The officer shouted, "Don't start the car or I'll shoot." Carabajal's vehicle moved slowly forward, in the officer's direction and the officer fired two rounds at Carabajal. A few minutes later, officers dragged Carabajal from the vehicle. Carabajal sued the officers claiming, among other things, excessive force. The district court held the officer was entitled to qualified immunity, which Carabajal appealed to the Tenth Circuit. The Circuit held the officer had not used excessive force by shooting Carabajal, relying on the fact that (1) a reasonable officer could conclude that his life was in danger when positioned between an oncoming vehicle and two parked police vehicles behind him, and (2) it appeared that Carabajal was deliberately driving towards Officer Thornton. The court further reasoned that "[g]iven Mr. Carabajal's equivocal compliance with police directives, when the vehicle began advancing toward Officer Thornton, he was not required to stand down and hope for the best." Having found that Officer Thornton did not violate Carabajal's Fourth Amendment rights, the Tenth Circuit affirmed summary judgment. The court was careful to note, however, that "our holding is not a blank rule that a police officer is entitled to qualified immunity whenever he or she uses deadly force against the driver of a vehicle that is moving in the direction of the officer or other individuals. The determination . . . remains heavily dependent on the claim in light of the unique circumstances of each case."

Pauly v. White, 814 F. 3d 1060 (10th Cir. No. 14-2035, filed 02/09/16), vacated in a per curium decision, White v. Pauly, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 16-67, filed 01/09/17). New Mexico officers were attempting to locate Daniel Pauly after a nighttime road rage situation. When officers arrived at Pauly's house, they attempted to locate his vehicle without being seen, using their flashlights only intermittently. Pauly and his brother saw the people with flashlights sneaking around and yelled "who are you?" The officers allegedly said, "come out or we are coming in." Pauly and his brother allegedly thought they were intruders from the earlier road rage situation, and armed themselves, shouting "we have guns." Another officer arrived about this time and took cover about 50' away from the house. Pauly fired warning shots out the back door. Then Pauly's brother opened a front window and pointed a handgun in the direction of the newly arrived officer, White, who shot and killed Pauly's brother. Pauly then sued, claiming excessive force. The officers appealed from denial of summary judgment. The Circuit affirmed, holding trier of fact could conclude that the officers' conduct preceding the shooting -- demanding entry into the Paulys' home without identifying themselves -- would reasonably have caused the brothers to arm themselves in defense of their home, as permitted by state law. It also held that Officer White's actions were objectively unreasonable because: (1) the officers were investigating a minor crime, (2) Officer White did not order Pauly to drop his weapon, (3) Officer White was fifty feet away when he shot, (4) both Officer White and Officer Mariscal were behind cover when Pauly opened the window, and (5) a jury could find that Officer White's belief that Officer Truesdale had been shot was unreasonable. The court also found that a reasonable jury could find that Officer White had violated clearly established law by (1) using deadly force even though he was not in danger, and that (2) the circumstances required Officer White to warn Pauly to drop his weapon. Mortiz dissented, and would have granted the officers immunity. The United States Supreme Court held that White should have been granted summary judgment.

This is not a case where it is obvious that there was a violation of clearly established law under Garner and Graham. Of note, the majority did not conclude that White’s conduct—such as his failure to shout a warning—constituted a run-of-the-mill Fourth Amendment violation. Indeed, it recognized that “this case presents a unique set of facts and circumstances” in light of White’s late arrival on the scene. 814 F. 3d, at 1077. This alone should have been an important indication to the majority that White’s conduct did not violate a “clearly established” right. Clearly established federal law does not prohibit a reasonable officer who arrives late to an ongoing police action in circumstances like this from assuming that proper procedures, such as officer identification, have already been followed. No settled Fourth Amendment principle requires that officer to second-guess the earlier steps already taken by his or her fellow officers in instances like the one White confronted here.

The court went on to say that, "Today, it is again necessary to reiterate the longstanding principle that 'clearly established law' should not be defined 'at a high level of generality,'" the Court wrote. "As this Court explained decades ago, the clearly established law must be 'particularized' to the facts of the case."

Manuel v. Joliet, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 14-9496, 03/21/17). Manuel may challenge his pretrial detention on the ground that it violated the Fourth Amendment. Officers arrested Manuel for drug possession. An evidence technician lied in his report, claiming that one of the pills was “found to be . . . positive for the probable presence of ecstasy.” On that basis, the judge conducting arraignment bound him over. He remained in custody, spending a total of 48 days in pretrial detention. Once the DA dismissed the charges, Manuel filed a 42 U.S.C. section 1983 lawsuit against a City and several of its police officers, alleging that plaintiff's arrest and detention violated the Fourth Amendment. The Seventh Circuit Court of Appeals upheld a district judge's dismissal of the complaint holding that it was time-barred because Manuel lacked any Fourth Amendment claim once legal process began. The Supreme Court reversed, holding that the Fourth Amendment governs a claim for unlawful pretrial detention even beyond the start of legal process. It remanded for resolution of the issue of when that cause of action accrued.

Park v. Gaitan, ___ F.3d ___ (10th Cir. No. 15-2020, filed 03/01/17). Officers were investigating a stabbing and went to a Korean-owned laundry to see if they had surveillance video. The propriotor (Park) did not believe a detective was a cop and refused to cooprate. Cops later returned with a warrant. Then, depending on who you believe, the proprietor resisted and was assisted to the ground. Park sued alleging excessive force. The district court granted the officers qualified immunity. The Tenth Circuit affirmed. With regards to the unlawful seizure claim, the court found that the officers violated Park's Fourth Amendment rights because they lacked probable cause to arrest Park for resisting an officer under New Mexico law. However, the Tenth Circuit held that it was not clearly established that the officer's violated Park's Fourth Amendment rights since no controlling decision "squarely govern[ed]" whether the officers lacked probable cause to arrest Park. Therefore, the officers were entitled to qualified immunity on the unlawful seizure claim. Turning to the excessive force claim, after noting that an officer can use the amount of force necessary to complete an arrest, the court found that the officers' use of force was reasonable and proportional to Park's physical resistance to the arrest. Therefore, the Tenth Circuit held that the officers' use of force did not violate Park's Fourth Amendment rights and, hence, the officers were entitled to qualified immunity on the excessive force claim.

Vogt v. City of Hays, ___ F.3d ___ (10th Cir. No. 15-3266, filed 01/04/17). Vogt was a Hays cop who applied with Haysville. During Haysville’s hiring process, Vogt disclosed that he had kept a knife obtained in the course of his work as a Hays police officer. Haysville offered Vogt a job on the condition that Vogt report his acquisition of the knife to the Hays police Department. Vogt complied with this request and submitted a brief report concerning his possession of the knife. Vogt then provided the City of Hays with a two-week notice of resignation, planning to accept the new job with Haysville. In the meantime, the Hays police chief began an internal investigation into Vogt’s possession of the knife and compelled Vogt to give a statement concerning the knife. Based on the Garrity-compelled statement and other evidence, the KBI lauched a criminal investigation and Vogt was charged with crimes regarding the knife, but they were dismissed at the preliminary hearing. Vogt sued the City of Hays, the City of Haysville and four police officers. claiming that use of his compelled statements: (1) to start an investigation leading to the discovery of additional evidence concerning the knife, (2) to initiate a criminal investigation, (3) to bring criminal charges, and (4) to support the prosecution during the probable cause hearing violated his Fifth Amendment right against self-incrimination. The district court held Vogt failed to state a Fifth Amendment claim. The Circuit reversed, holding that the phrase “criminal case” includes probable cause hearings as well as trials. The Circuit granted the four police officers qualified immunity. Until its holding in this case, the court noted that it was not clearly established in the Tenth Circuit if the term “criminal case” included pre-trial proceedings such as probable cause hearings. Third, the court affirmed the district court’s dismissal of Vogt’s claim against Haysville. The conditional job offer to Vogt was not coercive and did not compel Vogt to make incriminating statement to the City of Hays. If Vogt had not wanted to incriminate himself, the court reasoned that Vogt could have declined the job offer and continued working for the Hays police department. The Circuit reversed a district court holding that Vogt had not adequately alleged in his complaint the City of Hays used his compelled statements to cause a criminal investigation to be launched against him. It als held that Vogt adequately alleged in his complaint that the Hays chief of police was the final policy making authority for the city concerning employee discipline within the police department, and as a result, the City of Hays could be found liable for the actions of the police chief in this case.

Crimes and Punishment

C.M. v. McKee, ___ Kan.App.2d ___, ___ P.3d ___ (No. 115001, 06/23/17). An 11-year old girl obtained a protection from stalking order against her neighbor, McKee. s. A.M. testified about three incidents: (1) She said McKee jumped out of the

bushes as she was walking home with a friend in the alley behind McKee's house. A.M. said she was scared and ran to her Mother. (2) She said she was kicking an old plastic bottle with friends in her backyard when the bottle sailed over the fence into McKee's yard. She said he frightened her by yelling at her and her friends from his yard. (3) She said that she and a friend were in a car being driven by Father when McKee drove toward them in his truck from the opposite direction. She said that McKee took his hands off the steering wheel and his truck swerved towards the car A.M. was in. McKee appealed claiming the evidence was insufficient. The Court of Appeals disagreed. Under the definition of "stalking" in the Kansas Protection from Stalking Act, a plaintiff must have reasonable fear for his or her safety and the defendant's actions must be ones that would cause a reasonable person to suffer from substantial emotional distress before a district court may find the defendant stalked the plaintiff. In deciding whether stalking has taken place when the plaintiff is a child, the court must view the circumstances from the viewpoint of a reasonable child of the plaintiff's age.

State v. Sinzogan, ___ Kan.App.2d ___, ___ P.3d ____ (No. 113901, filed 01/06/17).

Defendant stalked his ex-wife at the Hutchinson mall and was convicted of violating a protective order and stalking. He alleged the convictions were multiplicitious, arguing that violation of a protective order is a lesser included offense of stalking. . The Court of Appeals held they weren't, because the states of mind are different. Stalking pursuant to K.S.A. 2015 Supp. 21-5427(a)(3) requires proof the defendant recklessly violated a protective order, while violation of a protective order requires the offense be committed "knowingly." A crime requiring a higher culpable mental state cannot be a lesser included crime of a crime that requires a lower culpable mental state.

T.H. v. University of Kansas Hospital Authority, ___ Kan.App.2d ___, ___ P.3d ____ (No. 114285, filed 01/06/17). A doctor at KU medical center misdiagnosed that a 9-month-old child had been sexually abused. She alerted the police and, with the aid of nurses at KU, conducted HIV and STD testing on the child. The parents sued, claiming they suffered pain, suffering, mental anguish, medical intrusion, humiliation, outrage, medical expense, and economic loss. The district court held the doctor was immune pursuant to K.S.A. 2015 Supp. 38-2223 and dismissed the case. The Court of Appeals affirmed, finding no malice in the doctor's actions.

DUI

State v. Lamone, ___ Kan.App.2d ___, ___ P.3d ___ (No. 115451, 06/09/17). Lamone was convicted of felony driving under the influence (DUI) under K.S.A. 2013 Supp. 8-1567(b)(1)(D) after wrapping her car around a tree and blowing a 0.214. She had two prior Wichita Municipal Court convictions under a Wichita City ordinance. Lamone argued the city priors could not be considered because at the time of her previous convictions, the Wichita City Ordinance was broader than the state statute in defining the term "vehicle." She also contended by at finding facts about the vehicles used in prior convictions, the district court erred. The Court of Appeals agreed with the latter point. It vacated her sentence and remanded to the trial court with directions to resentence Lamone without using or considering her two previous Wichita Municipal Court convictions. Gardner, J., dissents and would affirm.

State v. Castillo, ___ Kan.App.2d ___, ___ P.3d ___ (No. 115504 & 05, 06/09/17). On October 4, 2013, Castillo drank a fifth of bourbon then drove to the liquor store to purchase more. While driving home, she was arrested for DUI and admitted that she was intoxicated to the extent that she could not safely operate her vehicle. Six days later, on October 10, 2013, nearly the same events occurred— Castillo drank a fifth of bourbon over a 3-hour period, then drove to the liquor store and purchased another fifth of bourbon. While driving home, Castillo was arrested for DUI and she admitted that she was intoxicated to the extent that she could not safely operate

her vehicle. Her history included 10 DUI convictions. She was sentenced to two consecutive one-year sentences, and one year of postrelease supervision. After three failed breath tests and several other missed tests, the court revoked her postrelease supervision and sent her back to jail. Castillo claimed the district court lacked jurisdiction to do so. The Court of Appeals disagreed. The 2011 revisions evidence legislative intent that the Secretary of Corrections no longer supervise DUI offenders, post-incarceration. Thus any violation of the conditions of postimprisonment supervision subjects such person to revocation by the district court pursuant to the terms of K.S.A. 2016 Supp. 8-1567(b)(3) ("Any violation of the conditions of such supervision may subject such person to revocation of supervision and imprisonment in jail for the remainder of the period of imprisonment, the remainder of the supervision period, or any combination or portion thereof.").

State v. Stanley, ___ Kan.App.2d ___, ___ P.3d ___ (No. 112828, filed 04/01/16 (published on 03/01/17)). Stanley was sentenced for felony DUI, but alleged a Missouri prior should not count since Missouri’s statute is not substantially similar to the Kansas DUI statute because it does not have the element of being incapable of safely driving. “After comparing the Missouri and Kansas statutes prohibiting driving while intoxicated or driving under the influence, we have concluded that it is possible that the defendant . . . could have been convicted in Missouri for conduct that would not lead to a conviction for driving under the influence in Kansas. Therefore, Stanley's prior Missouri conviction does not qualify as a prior conviction under K.S.A. 2012 Supp. 8-1567(i), and we vacate his sentence and remand for resentencing.”

Employment

Milwaukee Police Association v. City of Milwaukee, ___ F.3d ___ (7th Cir. No. 16-4151, filed 05/03/17). Municipal employees do not have a fundamental right to be free from residency requirements. See McCarthy v. Phila. Civil Serv. Comm’n, 424 U.S. 645, 645–46 (1976); Gusewelle v. City of Wood River, 374 F.3d 569, 578 (7th Cir. 2004). Milwaukee amended its corporate charter to require all law enforcement, fire, and emergency personnel to reside within fifteen miles of city limits. The City gave affected employees six months from the date that the amended charter became effective to comply. If compliance within that timeframe proved impossible, affected employees could petition the Milwaukee Board of Fire

and Police Commissioners for an extension or a temporary hardship exception. The police association alleged that Milwaukee's action was unconstitutional and illegal. The 7th Circuit disagreed and upheld the residency requirement.

Evidence

State v. Mattox, ___ Kan. ___, ___ P.3d ___ (No. 111162, filed 03/10/17). Mattox and Hilt killed Keighley Alyea while robbing her in 2009. Mattox was sentenced by a judge to a hard 50 sentence. That sentence must be vacated. "Any fact that, by law, increases the penalty for a crime is an 'element' that must be submitted to the jury and found beyond a reasonable doubt." Alleyne v. United States, 570 U.S. ___, 133 S. Ct. 2151, 2155, 186 L. Ed. 2d 314 (2013). On other issues, Mattox attempted to have his father testify that on the night of the murder, he received a text that said, "Dad, it's Joe. I need help bad." The judge sustained a hearsay objection. The defendant contends it should have been admitted as an excited utterance. The Supreme Court disagreed. To establish the excited utterance exception to the hearsay rule, a party must show: (1) an event or condition occurred; (2) it was startlingly sufficient to cause nervous excitement; (3) the declarant perceived it; and (4) the declarant made the statement while under stress of nervous excitement.

 The district court reasonably concluded that the lack of context regarding the utterance was fatal. Mattox did not testify, and presented no witness to testify about the surrounding circumstances. Mattox also alleged his confession should have been suppressed because (1) he invoked his right to counsel during the interrogation; (2) his Miranda waiver was not knowing, intelligent, and voluntary; and (3) his confession was not voluntary because it was induced by promises of leniency. To invoke the Fifth Amendment right to counsel, a suspect must articulate the desire to have counsel present with sufficient clarity such that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney. While being interrogated by Lance Jordan and Brian Keating, Mattox asked, "You all care if I get a lawyer in here?" Jordan told him he had that right, then explained that if he lawyered up he wouldn't get a chance to tell his story. Jordan also clarified, asking if Mattox wanted to keep talking, and he did. The Court held that Mattox's invocation was ambiguous. But the Court was concerned with the manner of follow up: "We take a moment to express concern that the manner in which detectives followed up on the question—by feigning concern for Mattox's only chance to tell his side of the story—came perilously close to interfering with Mattox's opportunity to clarify that he wanted a lawyer present.

The better practice would be to simply ask open-ended clarifying questions such as, "Do you mean you want a lawyer?" However, under these facts, Mattox was afforded the opportunity to invoke, and he chose not to. Therefore, we hold that the district court correctly concluded that Mattox did not unambiguously invoke his right to counsel.

Exhibition of Speed

State v. Sharp, ___ Kan. ___, ___ P.3d ___ (No. 111845, 03/17/17), affirming in part State v. Sharp, ___ Kan.App.2d ___ , (No. 110,845, 2014 WL 7566576, at *7

(Kan. App. 2014) (unpublished opinion). Olathe officer Bowers saw Sharp doing a burnout at a stoplight. Sharp was charged with exhibition of speed under K.S.A. 8-1565 and misdemeanor driving under the influence under K.S.A. 8-1567. Sharp moved to suppress all evidence, reasoning the officer lacked reasonable suspicion to conduct the traffic stop. Judge Moriarty held the exhibition of speed statute was unconstitutionally vague. The Supreme Court held that Judge Moriarty need not have reached the constitutional issue, but determined there was no reasonable suspicion supporting the stop (?). "A strict construction of the statutory language

an "exhibition of speed or acceleration" would necessarily "denote movement of some kind." [Citations ommitted]. In this case, no evidence was presented that Sharp accelerated or moved his vehicle at all [because Sharp was powerbraking during the burnout] when the officer decided to stop the vehicle. Stegall, J., dissents, saying the ruling not only "defenestrate[s] law enforcement and create[s] a public safety risk, it defies common sense."

Forfeiture

Honeycutt v. United States, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 16-142, 06/05/17). Terry Honeycutt managed sales and inventory for a Tennessee hardware store owned by his brother, Tony Honeycutt. After observing several “‘edgy looking folks’” purchasing an iodine-based water-purification product known as Polar Pure, Terry Honeycutt contacted the Chattanooga Police Department to inquire whether the iodine crystals in the product could be used to manufacture methamphetamine. Both Tony and Terry were later indicted for federal drug crimes including conspiracy to distribute a product used in methamphetamine production, the Government sought judgments against each brother in the amount of $269,751.98 pursuant to the Comprehensive Forfeiture Act of 1984, which mandates forfeiture of “any property constituting, or derived from, any proceeds the person obtained, directly or indirectly, as the result of” certain drug crimes, 21 U. S. C. §853(a)(1). Tony pleaded guilty and agreed to forfeit $200,000. Terry went to trial and was convicted. Despite conceding that Terry had no controlling interest in the store and did not stand to benefit personally from the sales of the product, the Government asked the District Court to hold him jointly and severally liable for the profits from the illegal sales and sought a judgment of $69,751.98, the outstanding conspiracy profits. The District Court declined to enter a forfeiture judgment against Terry, reasoning that he was a salaried employee who had not received any profits from the sales. The Sixth Circuit reversed, holding that the brothers, as co-conspirators, were jointly and severally liable for any conspiracy proceeds. The Supreme Court reversed the Sixth Circuit, holding that forfeiture pursuant to §853(a)(1) is limited to property the defendant himself actually acquired as the result of the crime. That provision does not permit forfeiture with regard to Terry Honeycutt, who had no ownership interest in his brother’s store and did not personally benefit from the illegal sales. The statute does not countenance joint and several liability.

Immigration

State v. Hawaii v. Trump, ___ F.3d ___ (9th Cir. No. 17-15589, filed 06/12/17). Two sections of Executive Order 13780 (“EO2” or “the Order”), “Protecting the Nation From Foreign Terrorist Entry Into the United States,” issued by President Trump exceeded the scope of the authority delegated to him by Congress. In suspending the entry of more than 180 million nationals from six countries, suspending the entry of all refugees, and reducing the cap on the admission of refugees from 110,000 to 50,000 for the 2017 fiscal year, the President did not meet the essential precondition to exercising his delegated authority: The President must make a sufficient finding that the entry of these classes of people would be “detrimental to the interests of the United States.” Additionally, EO2 violates the INA's nationality-based discrimination provisions and require the President to follow a specific process when setting the annual cap on the admission of refugees. Thus, the preliminary injunction against §§ 2 and 6 is affirmed. UPDATE: 06/23/17 the United States Supreme Court granted the President's stay request in part, pending Supreme Court review. 582 U. S. ____ (Nos. 16-1436 and 16-1540, filed 06/23/17).

International Refugee Assistance Project v. Trump, ___ F.3d ___ (4th Cir. No. 17-1351, filed 05/25/17). The Fourth Circuit affirms a district court decision concluding that a nationwide injunction against Trumps travel bans was “necessary to provide complete relief.” Because section 2(c) (which suspends entry of nationals from six predominantly Muslim countries) likely violates the Establishment Clause, enjoining it only as to Plaintiffs would not cure the constitutional deficiency, which would endure in all Section 2(c)’s applications.

Case name unknown, U.S.D.C. San Francisco, filed 04/25/17). A federal judge has blocked a directive from President Donald Trump seeking to deny federal funding to so-called "sanctuary cities" and other localities that decline to cooperate in enforcement of federal immigration laws. San Francisco-based U.S. District Court Judge William Orrick issued a preliminary injunction barring federal officials nationwide from carrying out the portion of a Jan. 25 Trump executive order aimed at cutting off grants to local governments that won't provide assistance to federal authorities in locating and detaining undocumented immigrants.

State of Washington v. Trump, ___ F.3d ___ (9th Cir. No. 17-35105, filed 02/09/17).

The government appealed from a district court order temporarily enjoining Executive Order 13769, “Protecting the Nation From Foreign Terrorist Entry Into the United States,” which, among other changes to immigration policies and procedures, bans for 90 days the entry into the United States of individuals from seven countries. The district court held the order was likely unconstitutional and violative of federal law. The Ninth Circuit held that the Government has not shown a likelihood of success on the merits of its appeal, nor has it shown that failure to enter a stay would cause irreparable injury. It therefore deny the emergency motion for a stay.

Interpreters

Khalil-Alsalaami v. State, ___ Kan.App.2d ___, ___ P.3d ___ (No. 115184, 06/16/17). Defendant Ziad Khalil-Alsalaami's attorney was ineffective for not requesting that he have an interpreter at trial. Defendant, an Iraqi language interpreter for the military, raped a 13-year old girl. Although the defendant obviously spoke some English, his native language was Arabic. The Court of Appeals held that defendant's counsel placed a questionable trial strategy above Ziad's statutory rights and constitutional rights without discussing with him that he had such rights. In Kansas, defendants have a statutory right to an interpreter under K.S.A. 75-4351. The statute is unequivocal in its requirement that a "qualified interpreter shall be appointed . . . for persons whose primary language is one other than English." K.S.A. 75-4351. This court has held that the statute is mandatory not directory. See State v. Ahmedin, No. 105,378, 2012 WL 1919925, at *9 (Kan. App. 2012) (unpublished opinion). No reasonable attorney would have placed a fear of the jury's perception of the defendant—a perception that could have been adequately addressed during voir dire and through jury instructions—over and above the defendant's ability to understand the proceedings. Ziad deserved more. "Particularly inappropriate in this nation where many languages are spoken is a callousness to the crippling language handicap of a newcomer to its shores, whose life and freedom the state by its criminal processes chooses to put in jeopardy." United States ex rel. Negron v. State of New York,434 F.2d 386, 390 (2d Cir. 1970).

KORA

Green Unified Government of Wyandotte County/Kansas City Kansas, ___ Kan.App.2d ___, ___ P.3d ___ (No. 116038, 05/26/17). Trina Green asked to see records about the shooting of her son by law-enforcement officers from the Wyandotte County Sheriff's Department. The departments refused her request, citing K.S.A. 2016 Supp. 45-221(a)(10). Green sued for the records. The UG filed a motion to dismiss saying the petition failed to state a claim. The district court granted the motion. The Court of Appeals reversed. It started with the proposition that, given the public policy for disclosure, if the court finds disclosure would be "in the public interest" and none of the harms listed in K.S.A. 2016 Supp. 45-221(a)(10)(A)-(F) would arise on disclosure, then the records should be disclosed. The district court erred by not requiring the UG to satisfy its burden of proof to show that its action denying the records was proper. See K.S.A. 2016 Supp. 45-222(c).

Smith v. City of San Jose, ___ Cal. ___ (Cal. S.Ct. No. Unknown, profiled in the LA Times 03/02/17). Not surprisingly, texts and emails sent by public employees on their personal devices or accounts are a matter of public record if they deal with official business according to the California Supreme Court.

Miscellaneous

State v. LaPointe, ___ Kan. ___, ___ P.3d ___ (No. 112019, filed 03/02/17). Although K.S.A. 2015 Supp. 21-2512(a) only provides for post-conviction DNA testing in murder and rape cases, Judge Moriarty decided it should also apply to a robber who was sentenced to 245 months in prison. The Supreme Court, finding jurisdiction lacking as a question reserved appeal pursuant to 2015 Supp. 22-3602(b)(3), let the order stand. “We conclude the state had no statutory right to appeal the (DNA testing) order and the Court of Appeals correctly determined it lacked jurisdiction to hear the merits of the case,” wrote Justice Marla Luckert.

Sentencing

State v. Hambright, ___ Kan.App.2d ___, ___ P.3d ____ (No. 115259, filed 01/13/17). At the time of sentencing, a district judge may, entirely within his or her discretion, increase or decrease the recommended probation terms set out in K.S.A. 2015 Supp. 21-6608(c)(1) and (c)(2) up to a maximum of 60 months. Such a modification in the probation term does not constitute a departure sentence as contemplated in K.S.A. 2015 Supp. 21-6815.

Stand Your Ground Law (self defense immunity)

State v. Hardy, ___ Kan. ___, ___ P.3d ___ (No. 110982, filed 03/10/17), reversing 51 Kan.App.2d 296, 347 P.3d 222 (No. 110982 filed 03/27/15). Hardy shot Flores after Flores allegedly approached Hardy's car and punched Hardy in the face several times. Hardy filed a motion to dismiss alleging self-defense immunity. Rather than conducting a hearing on the motion, the district court reviewed the preliminary hearing transcript and granted the motion. The Court of Appeals reversed. It held that in considering a motion for self-defense immunity under K.S.A. 2014 Supp. 21-5231, a district court must conduct an evidentiary hearing, unless the parties otherwise stipulate to the factual record. The rules of evidence apply. At the hearing, the State has the burden to establish probable cause that the defendant acted without legal justification in using force. The district court must view the evidence in a light favoring the State, meaning conflicts in the evidence must be resolved to the State's benefit and against a finding of immunity. The Supreme Court reversed, holding: (1) the Court of Appeals erred by concluding that district courts must resolve evidentiary disputes in favor of the State when ruling on a defendant's motion for immunity pursuant to K.S.A. 2016 Supp. 21-5231; and (2) the district court's determination that Hardy was entitled to statutory immunity was both supported by substantial competent evidence and correct as

a matter of law. Adopting Karen Arnold-Burger's reasoning, the Court finds that self-defense is distinct from immunity. "Taking the case from the jury is precisely what the legislature's use of the term immune signifies. A true immunity . . . carries with it the necessity of a procedural gatekeeping function, typically exercised by a detached magistrate, who will prevent certain cases from ever getting to a

trial and a jury." Setting out the proper procedure and timing, the Court said:

 

We are convinced by the legislature's use of the key terms "probable cause" and "immune" that the legislature intended that the district court perform a warrant-like gatekeeping function in this context. Thus, upon a motion for immunity pursuant to K.S.A. 2016 Supp. 21-5231, the district court must consider the totality of the circumstances, weigh the evidence before it without deference to the State, and determine whether the State has carried its burden to establish probable cause that the defendant's use of force was not statutorily justified. Such a process is demanded by and inherent in the meaning of the terms used by the legislature.

 

Because the process just described requires a district court to hear and resolve conflicts in the evidence, we further hold the court's determination of probable cause must be premised on stipulated facts or evidence, on evidence received at a hearing pursuant to the rules of evidence, or both. See K.S.A. 60-402; State v. Page, 303 Kan. 548, 556, 363 P.3d 391 (2015) ("K.S.A. 60-402 establishes a general requirement for application of Kansas evidentiary rules in all proceedings unless exempted elsewhere."). The timing of such a hearing—including whether it should occur before, after, or contemporaneous with the preliminary hearing—is left to the sound discretion of the district court. When exercising such discretion, district courts must remain sensitive to the fact that the matter being resolved is a question of immunity that ought to be settled as early in the process as possible to fully vindicate the statutory guarantee.


The Court found the district court properly granted Hardy immunity. Flores was the aggressor, was reaching into Hardy's vehicle and was punching Hardy in the face when he was shot. The risk of great bodily harm to Hardy was imminent.

State v. Dustin Evans, ___ Kan. ___, ___ P.3d ___ (No. 112000, filed 03/10/17) reversing 51 Kan.App.2d 1043, 360 P.3d 1086 (No. 112000, filed 10/23/15)(JOCO Dist. Ct. No. 13CR1366 (OPPD Case No. 2013-012964)). Based on State v. Hardy, (summarized above), Judge Ryan properly dismissed aggravated battery charges against Evans, who ran a sword through his wrestling buddy allegedly because he felt threatened. Judge Ryan held that Evans was immune from arrest pursuant to K.S.A. 21-5231. The Court of Appeals had reversed, holding that Ryan failed to view the conflicting evidence in the light most favorable to the state, but the Supreme Court held the proper test to be a totality of the circumstances test without viewing the evidence favorably to either side. The record shows substantial competent evidence to support the district court's factual findings. See Evans, 51 Kan. App. 2d at 1053. "Given these facts, the district court's determination—that the State failed to demonstrate probable cause that Evans' use of force was not statutorily justified—was not error as a matter of law." Therefore, the Supreme Court reversed the Court of Appeals and affirmed the district court.



2016 Case Update List

January 1, 2016 through December 31, 2016 (or thereabouts)

Quick Links to prior year lists.

Full text of United States Supreme Court decisions.

Full text of 10th Circuit decisions.

Full text of Kansas Appellate decisions.

First Amendment

Belsito Communications Inc. v. Decker, ___ F.3d ___ (1st Cir. No. 16-1130, filed 12/23/16). Belsito and Blackden filed this suit alleging that New Hampshire State Trooper James Decker violated their constitutional rights when he seized Blackden's camera at the scene of a vehicle fatality crash in August 2010. Blackden dressed as a firefighter and drove a surplus ambulance and claimed to be "Penacook Rescue,", but they didn't know who he was. Belsito and Blackden lost on summary judgment. The 1st Circuit affirmed. In light of applicable law, it concluded, first, that Belsito lacks standing to pursue its constitutional claim; and, second, that even if Trooper Decker did violate Blackden's constitutional rights (a point not decided), Blackden failed to identify clearly-established law in August 2010 placing the illegality of the Trooper's conduct beyond debate.

Liverman v. City of Petersburg, Va., ___ F.3d ___ (4th Cir. No. 15-2207, filed 12/15/16). Officers were disciplined for Facebook posts lamenting the lack of experience of officers that had been recently promoted. Finding the officers were speaking on matters of public concern, and reversing summary judgment for a chief being challenged on a social media policy, the court said:

 

Two police officers challenge disciplinary actions for violations of their Department’s social networking policy. The district court denied relief on most of their claims. While we are sensitive to the Department’s need for discipline throughout the chain of command, the policy here and the disciplinary actions taken pursuant to it would, if upheld, lead to an utter lack of transparency in law enforcement operations that the First Amendment cannot countenance….

 

We appreciate the need for order and discipline in the ranks. See Maciariello, 973 F.2d at 300 (recognizing that “greater latitude is afforded to police department officials in dealing with dissension”). At the same time, we cannot countenance an arm of government with such enormous powers being removed to this extent from public scrutiny. This is not an all or-nothing matter; there is a balance to be struck. But the Department’s social networking policy, and the disciplinary actions taken to enforce it, lean too far to one side. We therefore hold that Chief Dixon is not entitled to qualified immunity….

 

Running a police department is hard work. Its mission requires capable top-down leadership and a cohesion and esprit on the part of the officers under the chief’s command. And yet the difficulty of the task and the need for appropriate disciplinary measures to perform it still does not allow police departments to wall themselves off from public scrutiny and debate. That is what happened here. The sensitivity of all the well-known issues that surround every police department make such lack of transparency an unhealthy state of affairs. The advent of social media does not provide cover for the airing of purely personal grievances, but neither can it provide a pretext for shutting off meaningful discussion of larger public issues in this new public sphere.

See also Brickey v. Hall, ___ F.3d ___ (4th Cir. No. 14-1910, filed 07/08/16). Police officer Randall Brickey was fired for comments he made as a candidate for town council that were critical of his employer, the Saltville Police Department, and its Police Chief, Rob Hall. Brickey filed suit under 42 U.S.C. § 1983 for retaliatory discharge in violation of the First Amendment. The district court denied Hall qualified immunity, he filed an interlocutory appeal. Because it was debatable at the time of Brickey's dismissal that his speech interests as a citizen outweighed Hall's interests as a public employer, the 4th Circuit held that Hall was entitled to qualified immunity, and reversed.

Bailey v. Wheeler, ___ F.3d ___ (11th Cir. No. 15-11627, filed 11/28/16). Plaintiff Derrick Bailey complained about racial profiling within his agency. He also indicated that officers made racially offensive comments and jokes about minorities. The department did not do anything for a while, but after Bailey was told to re-write reports and he pointed out that department policy prohibited it, Bailey was fired. He appealed. The next day Major Wheeler issued a BOLO picturing Bailey, warning that he was a “loose cannon” who presented a “danger to any [law-enforcement officer] in Douglas County,” and directing officers to “act accordingly.” Bailey sued. The district court denied Wheeler's motion to dismiss Bailey's claims and Wheeler appealed. The 11th Circuit affirmed the decision, holding there was plent of evidence to suggest a violaiton of Bailey's First Amendment rights.

Denton v. Yancey, ___ F.3d ___ (10th Cir. No. 15-5114, unpublished, filed 10/03/16). Lieutenant Mike Denton was one of a group of police officers who arrested a domestic abuse suspect in June 2011. Another officer later filed a complaint against Denton claiming he used excessive force during the arrest. The agency agreed and fired Denton, although an arbitrator later reinstated him. After he was reinstated, Denton's lawyer released a detailed account of the video footage from the June arrest to the Tulsa World. Prior to that time, the City had opposed the Tulsa World's open-records requests for the video footage because it was the subject of ongoing litigation and invaded Denton's privacy. After Denton's lawyer released the summary, the city released the actual tape. Denton then filed suit, arguing the City had released the tape in retaliation for his testimony at the hearing, and had only instituted an investigation in the first place because of Denton's e-mail to his fellow union members on July 7. The district court granted the City summary judgment on all claims, and Denton appealed. The Circuit found that Denton could not establish that his July 7, 2011 e-mail had been a motivating factor in the City's decision to investigate, as no evidence suggested the chief of police had been aware of Denton's e-mail at the time the investigation began. The Tenth Circuit affirmed summary judgment on all claims.

Heffernan v. City of Patterson, New Jersey, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 14-1280, filed 04/26/16). Heffernan claims his superiors at the Paterson, New Jersey, Police Department violated his free speech rights in 2005 when they demoted him after mistakenly assuming he was backing a challenger in a local mayoral race. It turns out Heffernan wasn't supporting the candidate, but was seen picking up a campaign sign for his mother. Lower courts ruled that the city didn't violate Heffernan's constitutional rights since he wasn't actually taking sides in the election. Roberts said. Heffernan initially won a $105,000 jury verdict against the city, but the judge later tossed the decision and recused himself due to a conflict of interest. A new judge dismissed the case and a federal appeals court affirmed. The United States Supreme Court reversed. Where when an employer demotes an employee out of a desire to prevent the employee from engaging in protected political activity, the employee is entitled to challenge that unlawful action under the First Amendment and section 1983, even if the employer's actions are based on a factual mistake about the employee's behavior. "When an employer demotes an employee out of a desire to prevent the employee from engaging in political activity that the First Amendment protects, the employee is entitled to challenge that unlawful action under the First Amendment and 42 U. S. C. §1983 -- even if, as here, the employer makes a factual mistake about the employee's behavior." Thomas and Alito dissent. Because Heffernan concedes he was not engaged in First Amendment activity, there should be no right to sue.

Second Amendment

Swindol v. Aurora Flight Sciences Corporation, ___ F.3d ___ (5th Cir. No. 14-60779, filed 08/08/16)(not really a 2d Amendment case, but deals with a public policy right to possess a firearm). A man who, contrary to his employer's policy, kept a locked gun in his car in the company parking lot can sue for wrongful termination under Mississippi law. The circuit court's ruling recognizes a new public policy exception to the doctrine of at-will employment. Swindol was an employee at Aurora Flight Sciences Corp. in Mississippi. One day, he came to work and locked a gun in his car in the company parking lot. When Swindo's employer found out about the gun, it terminated him and also issued a company wide warning that Swindol was a "security risk." Swindol sued for wrongful termination and defamation. The trial court dismissed both of Swindol's claims with prejudice. He appealed. The circuit court found that state law allows workers to keep their firearms in locked vehicles on company grounds despite the company's contravening policy. As a result, Mississippi Code Section 45-9-55 cannot be used as a justification to terminate an at-will employee.

Hollis v. Lynch, ___ F.3d ___ (5th Cir. No. 15-10803, filed 06/30/16). A 1986 federal statute makes possession of a “machinegun” unlawful. Jay Aubrey Isaac Hollis submitted an application to the Bureau of Alcohol, Tobacco, Firearms and Explosives to manufacture a machinegun. ATF denied his application pursuant to the 1986 statute. Hollis filed suit, challenging the constitutionality of the 1986 statute. The district court dismissed the suit, holding that Hollis lacked standing, and, in the alternative, that machineguns are not protected by the Second Amendment. We disagree about standing, but we AFFIRM the district court's judgment. Such weapons are "dangerous and unusual" and not at all like the weapons that would have been used by militias during the founding of the nation. "Heller took it as a given that M-16s are dangerous and unusual weapons and not protected by the Second Amendment."

Voisine v. United States, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 14-10154, filed 06/27/16). Voisine pleaded guilty to assaulting his girlfriend in violation of §207 of the Maine Criminal Code, which makes it a misdemeanor to “intentionally, knowingly or recklessly cause[ ] bodily injury” to another. When law enforcement officials later investigated Voisine for killing a bald eagle, they learned that he owned a rifle. After a background check turned up Voisine’s prior conviction under §207, the Government charged him with violating §922(g)(9). Armstrong pleaded guilty to assaulting his wife in violation of a Maine domestic violence law making it a misdemeanor to commit an assault prohibited by §207 against a family or household member. While searching Armstrong’s home as part of a narcotics investigation a few years later, law enforcement officers discovered six guns and a large quantity of ammunition. Armstrong was also charged under §922(g)(9). Both men argued that they were not subject to §922(g)(9)’s prohibition because their prior convictions could have been based on reckless, rather than knowing or intentional, conduct and thus did not quality as misdemeanor crimes of domestic violence. The District Court rejected those claims, and each petitioner pleaded guilty. The First Circuit affirmed. The United States Supreme Court agreed. A reckless domestic assault qualifies as a “misdemeanor crime of domestic violence” under §922(g)(9).

Peruta v. County of San Diego, ___ F.3d ___ (9th Cir. No. 10-56971, filed 06/09/16). The en banc Ninth Circuit held the 2d Amendment does not create a right for members of the general public to carry concealed firearms in public. The plaintiffs alleged that their counties, San Diego County and Yolo County, published policies defining good cause that violated their Second Amendment right to keep and bear arms.

Chesney v. City of Jackson, ___ F.Supp. 2d ___ (No. 14-11097, E.D. Mich. Mar. 21, 2016). On the one-year anniversary of the Boston Marathon bomb attack, Jeremiah Chesney was arrested at a Michigan Secretary of State vehicle title office after he initially entered with a loaded pistol on his hip and then returned, carrying a backpack and acting suspiciously, muttering to himself and pacing back and forth. A call was placed to police stating that Chesney had a concealed weapon. When officers arrived there were 50 to 60 people waiting in the title office. Chesney ignored officers' requests that he come outside peaceably to speak with them and refused to provide any identification. He was uncooperative when officers attempted to handcuff him and was charged with resisting arrest, ultimately spending 2 days in the county jail. Charges were subsequently dropped. A records check indicated that he had a permit to carry a weapon and that his pistol had been validly purchased and registered. He sued the arresting officers and the City of Jackson under § 1983, alleging violation of his Second Amendment right to carry a firearm and First Amendment right of expression, as well a Fourth Amendment-based claim for wrongful arrest without probable cause. The Court held that officers had qualified immunity in detaining and subsequently arresting Chesney. The Court rejected plaintiff's argument that openly carrying a firearm in public is a form of expression protected by the First Amendment and is a guaranteed Second Amendment right. It noted that Heller had only explicitly referenced use of arms to protect the "hearth and home." Neither the Supreme Court nor the Sixth Circuit, as plaintiff acknowledged, had established that open carry was guaranteed by the Second Amendment.

Colorado Outfitters v. Hickenlooper, ___ F.3d ___ (10th Cir. No. 14-1290, filed 03/22/16). After the Aurora theater shooting, Colorado Gov. John Hickenlooper proposed and pushed for restrictions on gun possession and ownership which Colorado passed. A legion of sheriffs from a majority of Colorado's counties brought suit together with various non-profits and business against Hickenlooper. The plaintiffs argued that the new laws violated the Second Amendment. The trial at the district court lasted almost ten days, and ultimately the plaintiffs lost. Plaintiff's appealed, but the 10th Circuit held they did not have standing to sue. The general standard for determining whether or not someone can sue in federal court is whether or not that person has been or will immediately be harmed by the defendant's actions. Here, the sheriffs raised only "speculative fear," which does not rise to the level of injury or immediate harm.

Caetano v. Massachusetts, 577 U. S. ____, 136 S.Ct. 1027, ___ L.Ed.2d ___ (No. 14-10078, filed 03/21/16)(Per Curiam). The Supreme Judicial Court of Massachusetts upheld a Massachusetts law prohibiting the possession of stun guns after examining “whether a stun gun is the type of weapon contemplated by Congress in 1789 as being protected by the Second Amendment.” 470 Mass. 774, 777, 26 N. E. 3d 688, 691 (2015). Their ruling conflicts with our precedent stating “the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding,” District of Columbia v. Heller, 554 U. S. 570, 582 (2008), and that this “Second Amendment right is fully applicable to the States,” McDonald v. Chicago, 561 U. S. 742, 750 (2010). The judgment of the Supreme Judicial Court of Massachusetts is vacated, and the case is remanded for further proceedings not inconsistent with this opinion.

Kolbe v. Hogan, 813 F.3d 160 (4th Cir. No. 14-1945, filed 02/04/16). A Maryland law passed in 2013 bans law-abiding citizens (with the exception of retired law enforcement officers), from possessing the vast majority of semi-automatic rifles commonly kept by several million American citizens for defending their families and homes and other lawful purposes. Plaintiffs sued, claiming the law violated the 2d Amendment. The district court granted the State summary judgment, applying intermediate scrutiny. The 4th Circuit reversed, holding that strict scrutiny was the appropriate test. Later, the en banc court affirmed. Kolbe v. Hogan, 849 F.3d 114 (4th Cir. No. 14-1945, filed 02/21/17)

Fourth Amendment

Brown v. Battle Creek Police Department, ___ F.3d ___ (6th Cir. No. 16-1575, filed 12/19/16). Officers obtained a warrant to search a known gang member's house for drugs and evidence of drug dealing. They encountered a a large, brown pit bull, weighing about 97 pounds, and a smaller white pit bull, weighing about 53 pounds. The lead officer said the brown pit bull lunged at him so he shot it. The white dog ran to the basement. As officers entered the basement the brown dog was growling and barking at the base of the stairs. The lead officer shot and killed the first dog, then noticed the white dog standing about halfway across the basement. The second dog was not moving towards the officers when they discovered her in the basement, but rather she was “just standing there,” barking and was turned sideways to the officers. The officer shot and killed the white dog. The district court granted the officers qualified immunity. The Circuit agreed. "The standard we set out today is that a police officer’s use of deadly force against a dog while executing a warrant to search a home for illegal drug activity is reasonable under the Fourth Amendment when, given the totality of the circumstances and viewed from the perspective of an objectively reasonable officer, the dog poses an imminent threat to the officer’s safety."

State v. Cleverly, ___ Kan. ___, ___ P.3d ___ (No. 111282, filed 12/23/16). Cleverly was a passenger in a vehicle detained for a traffic stop, after which a law enforcement officer conducted a series of searches of Cleverly and his effects, ultimately discovering methamphetamine in a cigarette package. Cleverly appealed his possession of methamphetamine conviction, claiming the district court erred in denying his motion to suppress the evidence obtained during an unlawful warrantless search. The Court of Appeals found that the final search of the cigarette package was consensual and sufficiently attenuated from an earlier unlawful pat-down of Cleverly. The Supreme Court disagreed and reversed. An El Dorado officer stopped the truck for its occupants not wearing seat belts, then saw the occupants making furtive gestures. After ticketing the driver for no insurance, the officer obtained consent to search the vehicle. Officers told Cleverly to get out and subjected him to a nonconsensual, involuntary pat-down search, but didn't find anything. Cleverly later consented to a person search, which did not yield anythign either. The officer asked to search his cigarette boxes, which were laying on the hood of the patrol car. Cleverly handed the boxes to the officer, who found methamphetamine in one of them. The Supreme Court held the consent was basically coerced because it came during an illegal detention. An officer who tells a person to exit a vehicle, puts hands on that person without consent, and directs the person to stand in front of the patrol car has not signaled to that person that he or she is totally free to disregard the officer's questions, decline the officer's requests, or otherwise terminate the encounter. Those detention indicators are not trumped by congenial conversation during the prolonged encounter. "[T]he individual rights assured to all citizens through the Bill of Rights of the United States Constitution are not inconvenient technicalities designed to irritate governmental agents. Moreover, if a search is unconstitutional, it is illegal, and its purpose cannot be labeled "valid.'" Before ending, we pause briefly to reject the State's creative, yet unavailing, theoretical arrest argument. The State contends that an objectively reasonable officer would have been justified in arresting Cleverly for the seat belt violation and, thereafter, the theoretical arrest could have supported a search incident to arrest, which theoretical search might have produced the methamphetamine evidence. See K.S.A. 22-2401(d) (law enforcement officer authorized to arrest when officer directly observes misdemeanor being committed). But what might have been does not trump what did occur.

State v. Schmidt, ___ Kan.App.2d ___, ___ P.3d ____ (No. 112209, filed 12/16/16). Schmidt was in an injury accident and the investigating officer smelled the odor of an alcoholic beverage on his breath. At the hospital, the officer gave Schmidt the implied consent advisory on the DC-70 form and asked Schmidt to submit a blood sample. Schmidt agreed to do so. The blood sample inevitably showed Schmidt at 0.20. Schmidt alleged his consent was coerced and not voluntary. The district court denied his motion to suppress. The Court of Appeals affirmed. The Fourth Amendment to the United States Constitution permits warrantless breath tests incident to arrests for drunk driving but not warrantless blood tests. Moreover, motorists may not be criminally punished for refusing to submit to a warrantless blood draw and consent to a warrantless blood test cannot be premised on a threat of criminal penalties for refusal to submit to the test. In this case where a law enforcement officer requested a motorist to submit to a warrantless blood test in reliance on the Kansas Implied Consent Law prior to the United States Supreme Court's decision in Birchfield v. North Dakota, 579 U.S. __, 136 S. Ct. 2160, 195 L. Ed. 2d 560 (2016), the results of the blood test are admissible under the good-faith exception to the exclusionary rule.

Womack v. City of Sparta, Missouri, Court and Case No. unknown, profiled on KY3, on 12/06/16. A woman whose pit bull was shot last year by a southwest Missouri police chief has agreed to a $6,000 settlement. An attorney for the dog's owner announced the settlement with the city of Sparta in a news release. Then-Police Chief Andrew Spencer caught Elizabeth Womack's dog after it got loose and put it in a crate. The release said the dog was never aggressive. But Spencer, who later resigned, wrote in a police report that the dog was barking at people. Spencer said he couldn't find an animal shelter nearby that would take the dog. The police report said Spencer was dispatched to a crash and killed the dog at the department's shooting range. Loose dogs are supposed to be held for five days.

State v. Chapman, ___ Kan. ___, ___ P.3d ___ (No. 111572, filed 10/21/16). An anonymous tip of suspicious but not criminal activity did not support reasonable suspicion for a law enforcement car stop. An unidentified caller to 911 reported that two individuals were walking around a Wichita model home in the middle of an extremely snowy night. The caller was unable to tell if the two had gone inside the home. The caller also said there was a black Acura Integra in front of the model home. A dispatcher relayed the information—including the address, number of individuals, and make and model of the car—to officers on patrol, treating the report as a "suspicious character" call. The officers stopped the car in the general area. Upon approach, officers saw a gun in the back seat floorboard, which turned out to be a BB gun. Officers searched the car, found evidence of identity theft and theft, and discovered that the Acura Integra was stolen. The Supreme Court held there was no reasonable suspicion to stop the car. It cautioned counsel and district judges in future cases to take care to perform an evaluation of tip reliability in their analysis of the totality of the circumstances supporting the existence of reasonable suspicion for a car stop.

United States v. Reyes, ___ F. Supp. 3d ___, 2016 WL 4273417 (D. Kan. Aug. 15, 2016). Wichita officers received a tip that a Hispanic male was selling drugs from a duplex. They surveilled the duplex and stopped an SUV drivey by Reyes for failing to signal 100 feet before turning. Once stopped, the officers asked Reyes for his driver's license. He told the officers it was suspended and was taken into custody. After denying consent to search the SUV, officers asked him why he seemed so anxious to have his girlfriend come get the SUV rather than wait for a canine, suggesting that Reyes had something illegal in the SUV. Reyes then told officers there was a blunt on the floorboard. Officers searched and found more drugs and guns. Reyes moved to suppress all the evidence contending officers violated his Miranda rights. The district court agreed, finding the statement about something illegal in the SUV was the functional equivaelent of interrogation, but the court refused to suppress Reyes the evidence because the failure to provide Miranda warnings warnings is not a violation of a suspect's constitutional rights. The Constitution is only violated upon the admission of the improperly elicited statements at trial. Thus, the District Court held that the exclusion of such statements is a complete and sufficient remedy for Miranda violations. The District Court explained that Reyes' statement about having a blunt in his SUV cannot be used against him at trial, but with respect to the failure to provide Miranda warnings, there is no reason to apply the fruit of the poisonous tree doctrine.

Unknown Plaintiffs v. City of Furguson, Case Number Unknown, E.D. Missouri, (profiled in Police Magazine, 08/29/16). A group of people caught up in unrest in Ferguson, Mo., after a white officer killed a black teenager, sued local officials on Thursday, alleging civil rights violations through arrests and police assaults with rubber bullets and tear gas, reports Reuters. The suit, filed in U.S. District Court for the Eastern District of Missouri, says law enforcement met a broad public outcry over the Aug. 9 killing of 18-year-old Michael Brown with "militaristic displays of force and weaponry," (and) engaged U.S. citizens "as if they were war combatants." The lawsuit seeks a total of $40 million on behalf of six plaintiffs, including a 17-year-old boy who was with his mother in a fast-food restaurant when they were arrested. Each of the plaintiffs was caught up in interactions with police over a period from Aug. 11 to 13, the suit alleges. Named as defendants are the city of Ferguson, St. Louis County, Ferguson Police Chief Tom Jackson, St. Louis County Police Chief Jon Delmar, Ferguson police officer Justin Cosmo, and other unnamed police officers from Ferguson and St. Louis County.

UPDATE: from Police Magazine 10/04/16 - A federal judge on Monday dismissed a $40 million civil rights lawsuit that alleged police used excessive force against protesters in Ferguson following the death of Michael Brown. In a 74-page ruling, Judge Henry Autry sided with Missouri law enforcement saying the protesters "have completely failed to present any credible evidence that any of the actions taken by these individuals were taken with malice or were committed in bad faith." The lawsuit, which was filed by nine individuals, alleged that local police unlawfully arrested, beat, tear-gassed and shot rubber bullets at them during the Ferguson riots, NBC News reports. The judge did not agree, instead saying protest participants "were advised to disperse" but ignored "repeated warnings."

Armenta v. City of Lawrence, Douglas County District Court Case No. Unknown, profiled in Lawrence Journal-World August 29, 2016. Update: According to a Lawrence Journal-World article on 09/09/16, the lawsuit dismissed after the case was "gutted" by a 9/2/16 pretrial ruling that would limit the trial testimony to focus solely on Armenta's arrest, a ruling that Plaintiff's Attorney Jerry Levy said was the trial judge "protecting the cops." A Lawrence firefighter suing the city says he voiced his disapproval over what he deemed to be police brutality, and then left the scene under arrest and with a broken arm. The lawsuit, which accuses the Lawrence Police Department of using both excessive and negligent force, could cost the city nearly a quarter of a million dollars. Witnesses say one officer bashed a man's head against a squad car, then "manhandled" and "beat" Lawrence firefighter Miguel Armenta after police arrived at Lawrence's VFW hall, 1801 Massachusetts St., to break up an argument on the afternoon of April 19, 2014. However, police say nobody was beaten and that officers acted within their rights to keep the peace. Armenta and his attorney, Jerry Levy, filed the civil lawsuit on Oct. 20, 2014. A jury trial in the case is scheduled to begin in September. The lawsuit lists the City of Lawrence, Lawrence police officers Timothy Froese, Frank McClelland and Sgt. Craig Shanks as defendants. The lawsuit is seeking $225,000 in compensation for Armenta's injuries. The lawsuit claims three points where the defendants are at fault: Use of excessive force, Supervisory liability of Shanks and Negligent use of force. After Armenta was arrested he was found guilty of interfering with his own arrest; however, he was also acquitted of two other interfering with law enforcement charges.

Leroy Duffie v. City of Lincoln, ___ F.3d ___ (8th Cir. No. 15-2431, filed 08/23/16). Lincoln officers conducted a felony car stop on Duffie after convenience store clerks reported a young black man acting strangely. They said after he left the store, they saw him sitting in the passenger seat of a van, and he held up a gun and acted like he was blowing smoke from the barrel. That report was at 9:20 p.m. The officers stopped a van at about 12:45 a.m. thinking it might be the same van. Officers ordered the driver and sole occupant out at gunpoint, but soon realized the driver did not have any legs. And rather than a young black man, Duffie was a 58-year-old bald man. Duffie was injured and sued the officers for injuries and the search of his van. The district judge dismissed the suit finding that the defendants had qualified immunity. The Eighth Circuit, in a 2-1 decision, reversed. “Darkness limited (the officer’s) vision; nonetheless, an objectively reasonable police officer would not mistake a 58-year-old bald man for a young adult with hair.” “Officers may not turn a blind eye to facts that undermine reasonable suspicion.” During their search of the van, the officers did find a silver paintball gun. But the Circuit said that given Nebraska’s law allowing the open-carry of guns, the report of a suspicious man with a gun at the store could not be construed as a crime, and therefore was not a valid basis for stopping Duffie. Shepherd, J., dissenting, said that the officers did not have to exclude the possibility that the man at the convenience store was acting within Nebraska’s open-carry law to justify the stop.

Vasquez v. Lewis,___ F.3d ___ (10th Cir. No. 14-3278, filed 08/23/16). If it wasn't clearly settled that you can't stop a car just because it has an out of state license plate, it is now. KHP officers Richard Jimerson and Dax Lewis, stopped Vasquez late at night on I-70 in Waubunsee County, Kansas when they could not read the temporary tag taped to the inside of the car's tinted rear window. The officers contended they were justified in searching the vehicle because Vasquez was a citizen of Colorado driving on I-70, a "known drug corridor," in a recently purchased, older-model car (1992 BMW). They said he also seemed nervous. After a trooper two-step (a/k/a Columbo pivot) failed to yield consent, Lewis detained Vasquez for an additional 15 minutes to await a drug dog. Nothing illegal was found. When Vasquez sued the officers, the district court concluded the officers were entitled to qualified immunity because Vasquez’s asserted right was not clearly established. The 10th Circuit, in a 2-1 decision, disagreed. It held that the Officers acted without reasonable suspicion and violated clearly established precedent. The Court said it has repeatedly admonished law enforcement that once an officer has been assured that a temporary tag is valid, he “should . . . explain to Defendant the reason for the initial stop and then allow her to continue on her way without requiring her to produce her license and registration.” (Citations omitted.) It also pointed out that twenty-five states permit marijuana use for medicinal purposes, with Colorado, Alaska, Oregon, Washington, and Washington, D.C., permitting some recreational use under state law, the court noted. The officers' reasoning would justify the search and seizure of citizens of half of the states in the country, the court said, adding it is "wholly improper" to assume someone is more likely to commit a crime because of his state of residence. "Accordingly, it is time to abandon the pretense that state citizenship is a permissible basis upon which to justify the detention and search of out-of-state motorists, and time to stop the practice of detention of motorists for nothing more than an out-of-state license plate." Tymkovich, C.J, dissented, saying the case presented a close call on reasonable suspicion and qualified immunity should protect officers in close cases.

Davis v. Clifford, ___ F.3d ___ (10th Cir. No. 15-1329, filed 06/13/16). Lakewood Colorado officers decided to stop Davis after running her handicapped tag and finding she had a warrant for failure to maintain liability insurance. Police cars surrounded Davis's vehicle. Officers began pounding Davis’ car with their batons, demanding she exit the vehicle. Fearing for her safety, Davis asked the officers for assurances that they would not hurt her, and they responded by smashing her car window, pulling her through the broken window by her hair and arms, and throwing her on the glass-littered pavement. Davis also claims the City is culpable in failing to properly train and supervise the officers. She appealed from the district court’s grant of summary judgment, which held the officers were entitled to qualified immunity and the City was not liable. The Circuit reversed. While it noted that several facts were in dispute, the law required it to view the facts in the light most favorable to Davis. Those facts showed officers used excessive force to effect the arrest of a non-violent misdemeanant that was offering only passive resistance. "The degree of force allegedly used by police officers in this case is disturbing, and we find nothing in the record that would justify the alleged aggressive behavior of the officers."

State v. Keenan, ___ Kan. ___, ___ P.3d ___ (No. 108550, filed 08/19/16). A Lenexa officer was dispatched to Keenan's house on a report from Keenan's child's grandmother that Keenan might be: (a) violating a PFA and (b) operating a vehicle with a child inside while intoxicated. The officer arrived and saw Keenan pull into the driveway. She made contact with Keenan who asked if he could put his child inside the house, and she noticed an odor of an alcoholic beverage, and poor balance and coordination. Keenan was on his cell phone the whole time he was making his way into the house, and he refused officers' request to enter. They entered anyway due to a concern for disappearance of evidence. After a brief dust-up with Keenan, officers recovered open containers from his vehicle and charged Keenan with felony DUI, third offense, refusing a preliminary breath test, and transporting an open container. Keenan alleged all evidence should be suppressed due to officers' warrantless entry. Judge Davis denied the motion. The Court of Appeals affirmed, holding the totality of the circumstances supports a finding of probable cause to arrest Keenan for violating a PFA and a possible DUI, and exigent circumstances excused their warrantless entry. The Court distinguished Welsh v. Wisconsin, 466 U.S. 740, 104 S. Ct. 2091, 80 L. Ed. 2d 732 (1984), because Kansas DUIs and PFA violations are jailable offenses. Also, the Court determined the officers were in hot pursuit because Keenan was trying to retreat into his house from an arrest that was "set in motion in a public place." See United States v. Santana, 427 U.S. 38, 43, 96 S. Ct. 2406, 49 L. Ed. 2d 300 (1976). The Court included this cautionary language in its conclusion: "With this holding we are not establishing a bright-line rule to approve the warrantless entry into the house of a driver suspected of being under the influence of alcohol. When considering the totality of the circumstances, we are only saying the facts of this case reflect the officers' warrantless entry into Keenan's house was justified and reasonable." The Supreme Court agreed there was probable cause, but didn't answer the exigent circumstances question. It said it need not reach exigent circumstances or hot pursuit because, even if the entry was illegal, any error by the district judge was harmless. The evidence resulting from entry into the home was merely cumulative of evidence the officers already had.

State v. Wissing, ___ Kan.App.2d ___, ___ P.3d ____ (No. 115235, filed 07/29/16). A Hutchinson Sergeant saw a man riding a moped and recognized him from previous contacts as Jonathan Wissing. Believing that active warrants for Wissing were outstanding, the Sergeant stopped him. The Sergeant testified that he saw Wissing look inside a wallet and put it in his pocket. The Sergeant placed Wissing under arrest for the outstanding warrants and handcuffed Wissing's hands in front of his body. Wissing asked the Sergeant if he could go inside his nearby house to tell his mother he was going to jail. The Sergeant agreed and walked into the house with Wissing. While Wissing was talking with his mother, the Sergeant saw Wissing remove a wallet from his back pocket and place it on a dresser. The Sergeant then retrieved Wissing's wallet and asked Wissing if his ID was in it. When Wissing responded that it was, the officer opened the wallet and found a small plastic bag containing a white crystalline substance that the officer believed to be methamphetamine. The officer seized the plastic bag. The district court suprressed the evidence. The district court held that Wissing placed the wallet "out of his control in a safe place" as opposed to "throw[ing] it out of a car window," apparently finding some middle ground between the wallet being within Wissing's control and it being abandoned. The Court of Appeals held that was irrelevant. It found, based on a categorical approach, that the officer had the authority to search the wallet incident to Wissing's arrest.

Shultz v. Buchanan, ___ F.3d ___ (8th Cir. No. 15-1854, filed 07/19/16). An officer was dispatched on a disturbance and while questioning the suspect, Shultz, outside, he repeatedly had to instruct Shultz, whom he suspected had been drinking, to calm down. Shultz eventually confirmed he was not under arrest and stormed inside. The officer asked Shultz's wife, Jennifer, to go inside and ask Shultz to come back out. When she went inside, the officer heard Shultz scream, saw his children run out of the house, and heard a "thud." The officer then entered the house and asked Shultz to come outside. When Shultz declined, the officer followed him upstairs with his Taser drawn. According to Shultz, the officer said "You asked for it," and deployed his Taser three times. Shultz suffered only minor injuries, and was eventually arrested. He filed suit against the officer under 42 U.S.C. § 1983 for unlawfully entering his home and using excessive force. The district court granted the officer summary judgment on qualified immunity grounds. Shultz appealed to the Eighth Circuit. On the unlawful entry claim, the Eighth Circuit noted that an officer may enter a home without a warrant to provide emergency assistance to an injured person or to protect a person from imminent injury. The court also explained that an officer need not have "ironclad proof of a likely serious, life-threatening injury" to invoke the "exigent circumstances" exception. The Eighth Circuit concluded that an officer in these circumstances would have reasonable grounds to believe someone in Shultz's home was in need of immediate assistance based on hearing Shultz scream, seeing children run out of the house, and hearing a loud "thud." Consequently, the court held the officer had not unlawfully entered Shultz's home. With respect to Shultz's excessive force claim, the Eighth Circuit assumed, without deciding, that there was at least a question of fact as to whether the officer's use of his Taser was unreasonable. Regardless, the court classified Shultz's injuries as de minimus, and held that it had not been clearly established in the Eighth Circuit as of March 2011 that an officer violates an arrestee's rights by applying force that causes only de minimus injuries. Because the court found that the officer had not violated Shultz's clearly established rights, it held the officer was also entitled to qualified immunity on Shultz's excessive force claim.

Smith v. City of Chandler, No. 14-15969, (9th Cir. July 18, 2016). The Ninth Circuit has reversed an Arizona federal district court, finding that an officer who fired beanbag rounds at a compliant detainee from close range was on notice that such action violated Fourth Amendment standards. Officers with their guns drawn entered Brandon Smith's patio area, with knowledge that he was emotionally disturbed and suicidal. They began issuing commands to Smith. Smith thought he heard an officer say "stand up." He had a knife cradled in his arms pointed at himself. He was eight feet from the nearest officer, who was pointing a gun at him. When Smith stood up another officer shot Smith with two beanbag rounds. Smith filed an excessive force claim, and the district court granted summary judgment to the officers, ordering Smith to pay attorney's fees and non-taxable costs. Smith appealed successfully. The Ninth Circuit determined, taking the facts in a light most favorable to Smith, that material facts were outstanding as to what Smith heard with regard to the commands-making summary judgment inappropriate. As for the officer's alternative argument that, no matter the material facts, he was entitled to qualified immunity for shooting the beanbag rounds, the Court denied such relief. It cited Circuit precedent clearly establishing that under these facts it was unreasonable to discharge beanbag rounds at close range against Smith. Given these reversals, the Circuit also vacated the award of fees and costs and remanded the case.

Goad v. Town of Meeker, ___ F.3d ___ (10th Cir. No. 15-6085 , filed 07/01/16). James Goad, a pawn shop operator, complained about a police officer that would not move his car, which was blocking the entrance to Goad's pawn shop. One year later, following additional conflict between Goad and law enforcement, the Town's Chief of Police (Chief) obtained a warrant for Goad's arrest based on false statements Goad made in the earlier complaint that he owned the pawn shop in question. Goad voluntarily turned himself in. The charges were ultimately dropped, but Goad sued the Town and the Chief under a spectrum of counts including First Amendment retaliation and violation of his Fourth Amendment rights. The latter was based on Goad's contention that the arrest warrant should not have been issued because the Chief's warrant application lacked sufficient grounds. The district court granted summary judgment to defendants. On appeal, the Tenth Circuit affirmed. The relevant question was not whether the four corners of the warrant application provided a sufficient factual basis for issuance of a warrant; the question was whether there was probable cause to support arresting Goad. Therefore, the court was permitted to consider additional information known to the Chief which contributed to the finding of probable cause. Apart from the statement in the warrant application that official records did not show Goad to be the pawn shop owner, the Chief had also obtained information that Goad was a convicted felon who had served time for receiving stolen property-a crime which would clearly disqualify Goad from ownership of a pawn shop. That additional information supported probable cause to arrest Goad.

United States v. Matish III, ___ F.Supp.2d ___ (U.S.D.C. E.D. Va., No. 4:16cr16, filed 06/23/16). This case involves a child pornography trafficking site odiously named Playpen that had been accessible, among other means, through "The Onion Router" (Tor), a software project that is meant to hide the location and usage of any user from those conducting surveillance and traffic analysis. Tor had been used to traffic child porn. The government took over a Tor server and planted itself there. Instead of shutting down the server, it decided to hack over 1,000 computers that accessed the Tor server and grabbed not only IP addresses, but also MAC addresses, which identify the hosts' names and the operating systems of the machines. Matish sought to suppress all of the information the FBI collected as fruit of the poisonous tree for lack of a valid search warrant. Federal district judge Henry Coke Morgan Jr. ruled that because of the "virtual certainty that computers accessing the Internet can--and eventually will--be hacked," no warrant is needed to access the contents of one's computer when accessing a Tor server. He held there was probable cause for both warrants (to deploy the NIT software on the Tor server and the later warrant for Matish's home and computer).

Utah v. Strieff, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 14-1373, filed 06/20/16). Narcotics detective Douglas Fackrell conducted surveillance on a South Salt Lake City residence based on an anonymous tip about drug activity. The number of people he observed making brief visits to the house over the course of a week made him suspicious that the occupants were dealing drugs. After observing respondent Edward Strieff leave the residence, Officer Fackrell detained Strieff at a nearby parking lot, identifying himself and asking Strieff what he was doing at the house. He then requested Strieff’s identification and relayed the information to a police dispatcher, who informed him that Strieff had an outstanding arrest warrant for a traffic violation. Officer Fackrell arrested Strieff, searched him, and found methamphetamine and drug paraphernalia. Strieff moved to suppress the evidence, arguing that it was derived from an unlawful investigatory stop. The trial court denied the motion, and the Utah Court of Appeals affirmed. The Utah Supreme Court reversed, however, and ordered the evidence suppressed. The United States Supreme Court reversed, expressing doubt on cases such as State v. Moralez, 297 Kan. 397, 415, 300 P. 3d 1090, 1102 (2013) (assigning little significance to the discovery of the warrant). In this case, there was no flagrant police misconduct. Therefore, Officer Fackrell’s discovery of a valid, pre-existing, and untainted arrest warrant attenuated the connection between the unconstitutional investigatory stop and the evidence seized incident to a lawful arrest.

Mayfield v. Bethards, ___ F.3d ___ (10th Cir. No. 15-3074, filed 06/20/16/16). Animals, including dogs, constitute personal property protected against unreasonable searches and seizures. The Mayfields may proceed to trial in their suit against a Harvey County sheriff’s deputy who is accused of entering the family’s front yard without a warrant and killing their dog. They Mayfields’ alleged that Deputy Jim Bethards and his partner entered their property on July 13, 2014, without a warrant with the intention of killing their two dogs, shooting at both dogs and killing their white Malamute Husky, Majka. Their complaint cited a witness who said neither dog acted aggressively. The lawsuit contends Bethards shot Majka three times on the front porch, and then he and his partner unsuccessfully searched for the family’s brown dog, Suka, who had fled to the back of the house and disappeared into a wooded section of the property. The deputies are then accused of moving Majka’s body and trying to hide it in a row of trees. The deputy had contended in a police report that killing the dog was reasonable because he thought Majka had attacked livestock and believed Kansas law allows anyone to kill a dog reported to have done so. Bethards had asked a district judge dismiss the lawsuit, arguing dogs are not subject to Fourth Amendment protection and that killing Majka was reasonable under the circumstances as a matter of law. The district judge denied that request, and the three-judge appellate panel agreed with the lower court’s rejection of Bethards’ argument that he had qualified immunity as a government official that protects him from suit for civil damages. The federal appeals court also noted the Kansas Supreme Court has ruled in another case that it is the burden of a defendant to show he was justified in shooting a dog, and that the question of whether a livestock owner in “hot pursuit” enters a dog owner’s property “with consent or implied consent” is a question for a jury to decide. The Mayfields told Harvey County Sheriff T. Walton that the accusation their dog had mauled a neighbor’s livestock a year earlier was a case of mistaken identity, and that the offending dog had been shot by the livestock owner and later put down as a result of those shotgun wounds, the court noted.

United States v. Aaron Graham, ___ F.3d ___ (4th Cir. No. 12-4569, en banc, filed 05/31/16). A federal appellate court in Virginia ruled 12-3 that no warrant is needed to obtain cell phone location data because consumers have no reasonable expectation of privacy in information they willingly surrender to cell phone companies."Supreme Court precedent mandates this conclusion. For the Court has long held that an individual enjoys no Fourth Amendment protection 'in information he voluntarily turns over to [a] third part[y].'" The issue may still make its way to the Supreme Court eventually and some experts expect the strong dissent in this case and others like it indicate there is hope yet for privacy.

Perea v. Baca, ___ F.3d ___ (10th Cir. No. 14-2214, filed 04/04/16). Albuquerque officers responded to a check the welfare call from a mother who said her son, Perea, was on "very bad drugs" and that she was afraid of what he might do. Prior to their arrival, Perea left on a bicycle. Officers located him and used their patrol cars to force him to pedal into a parking lot. They attempted to subdue him and he struggled. Officers used a taser initially in probe mode, then in drive stun mode. They discharged the taser ten times in less than two minutes. Perea died. The Court of Appeals first noted that the repeated TASER™ deployments against Perea after he was subdued was a violation of the 4th Amendment as excessive force. In applying the 3 factor Graham test, the court noted that pedaling through a stop sign, Perea's only offense at the outset was minor. Secondly, the officers did not indicate that Perea posed a threat to anyone but himself prior to the interaction. The court indicated that the third factor was an issue because of Perea's resistance to the officers however the court noted that the officers' response to that resistance had to be "reasonable and proportionate given Perea's resistance." The court held that "Perea's resistance (thrashing and swinging a crucifix) did not justify the officers' severe response." While the court acknowledged that some force was justified during Perea's initial resistance, a jury could find that the continued use of the TASER™ once Perea was subdued was unreasonable. The court said:

 

[T]he situation was not static over the course of the ten taserings. When Officer Jaramillo first engaged the Taser, he shot Mr. Perea in the chest. At the time, Mr. Perea was trying to ward off the officers with his crucifix. . . . At some point, however, Mr. Perea fell and the officers pushed him to the ground with his arms under his body. One officer was on 'the upper part of his body' while the second officer was on his legs. Officer Jaramillo continued to taser Mr. Perea in the back again and again until he pulled his arms out and handcuffed both hands.


The court held that even if force was justified during the initial deployments, the force was not justified once Perea was subdued. Having found a violation of the 4th Amendment, the court went on to find that the law was clearly established at the time and thus the officers were also denied Qualified Immunity.

State v. Mullen,___ Kan. ___, ___ P.3d ___ (No. 110468, filed 04/22/16, affirming 51 Kan.App.2d 514, 348 P.3d 619 (2015)). A United States Postal Inspector in Kansas City, Missouri, noticed a suspicious package. The inspector contacted the Shawnee Police Department and informed the police he had a suspected drug package addressed to a house on Meadowsweet Lane, Shawnee, Kansas, for delivery that a police K-9 unit had hit on. A detective obtained an anticipatory search warrant for the house on Meadowsweet Lane from a magistrate judge. The anticipatory search warrant required a controlled delivery of the suspected drug package to the house before it granted authority to enter the house. Once the package was delivered, officers entered, and Mullen, post-Miranda, admitted he knew it contained marijuana (2 pounds). Mullen was supposed to receive the package, not open it, then give it to someone else. Mullen argued a controlled delivery required a hand-to-hand delivery between the inspector and Mullen, and not the inspector leaving the package on the steps for someone to retrieve it later. The Court of Appeals disagreed, holding the triggering event for the anticipatory warrant had occurred. And, although Mullen agreed to a bench trial on stipulated facts, and the stipulation contained a waiver of jury trial, the district court failed to personally advise Mullen of his right to a jury trial, and Mullen did not personally waive his right to a jury trial on the record. Since the record is silent on both points, the court reversed his conviction for possession of marijuana with intent to distribute and remand the case for further proceedings for the district court to explain on the record to Mullen his right to a jury trial. The Supreme Court affirmed.

United States v. Mendoza, ___ F.3d ___ (10th Cir. No. 15-7042, filed 03/25/16), 2016 U.S. App. LEXIS 5597 (10th Cir. Okla. Mar. 25, 2016))(summary by FLETC training divison). A state trooper stopped Mendoza for speeding. Mendoza drove a half mile before pulling over, and the trooper noticed food and trash in the passenger seat, suggesting that Mendoza had been trying to avoid stopping on the way to his destination. In addition, Mendoza appeared to be nervous and was visibly shaking when he handed his driver's license to the trooper. After the trooper recognized the car was a rental, he asked Mendoza for the rental agreement, but Mendoza mistakenly gave him his insurance document before handing him the rental agreement. When the trooper asked Mendoza about his travel plans, he realized what Mendoza told him was inconsistent with information contained in the rental agreement. The trooper issued Mendoza a written warning, and as Mendoza was preparing to leave, the trooper asked him, "Can I ask you a question?" Mendoza agreed to speak with the trooper and eventually gave the trooper consent to search his car. The trooper asked Mendoza to wait in his patrol car and told him to honk the horn if he wanted the trooper to stop the search. In the meantime, a second trooper arrived to assist with the search. The troopers found two ice chests in Mendoza's car, one in the trunk and one in the back seat. They opened the ice chest from the trunk and found that it contained wrapped fish and shrimp. The troopers also noticed the chest showed signs of tampering. First, one of the hinges was broken and the lip of the inner lining was partially separated from the outer shell. Second, one screw was missing while several others looked as if they had been taken in and out multiple times. In addition, the troopers knew that smugglers sometimes use seafood to mask the presence of drugs. After removing the seafood and placing it on the ground, one of the troopers used an upholstery tool to pry the inner and outer liners farther apart. As he separated the liners, the trooper saw that the lining contained spray foam that did not originally come with the ice chest. When he pried the lining farther apart, the trooper saw the corner of a black, taped bundle. The trooper had encountered similar bundles in the past containing drugs. The trooper tore open the outer lining of the chest and found 13 bundles containing marijuana. The trooper then dismantled the second ice chest in a similar manner and found two bundles containing methamphetamine. Mendoza did not honk the horn at any time during the search. The government charged Mendoza with possession with intent to distribute methamphetamine and marijuana. Mendoza argued the evidence seized from the ice chests should have been suppressed. First, Mendoza argued his consent to search was not valid because it was obtained after the trooper unlawfully prolonged the duration of the traffic stop. The court disagreed. The court found the trooper established reasonable suspicion during the stop to believe that Mendoza might be involved in criminal activity. Among other things, the court noted that Mendoza drove for a half mile before pulling over, he was extremely nervous during the stop, and his travel plans did were not consistent with information on the car's rental agreement. As a result, the court held Mendoza's detention up to the consent search was lawful. Second, Mendoza argued the trooper exceeded the scope of his consent by removing the packaged seafood from the first ice chest and prying open the lining. Again, the court disagreed. A general consent to search a car includes closed containers located within the vehicle. Here, Mendoza consented to a general search of his car without any limitations or restrictions. In addition, Mendoza had been told that he could stop the troopers' search at any time by honking the horn in the patrol car, and although he had a clear view of the troopers' actions, he never did. Finally, the trooper's further separation of the already separated inner and outer lining of the ice chest did not permanently damage it. Once the trooper saw the black bundle in the lining of the first ice chest, he had probable cause to search the chest regardless of the scope of Mendoza's consent. Third, Mendoza argue the troopers violated the Fourth Amendment by destroying the second ice chest during the search without probable cause that it contained evidence. The court disagreed, holding that it was reasonable for the troopers to dismantle the second ice chest after they had found drugs in the modified lining of the first ice chest.

United States v. Carloss, ___ F.3d ___ (10th Cir. No. 13-7082, filed 03/11/16). ATF received several tips that Carloss, a previously convicted felon, was unlawfully in possession of a firearm, possibly a machine gun, and was selling methamphetamine. An ATF agency and a Tahlequah, Oklahoma police officer went to the residence where Carloss was staying to conduct a knock and talk. There were several "No Trespassing" signs placed in the yard and on the front door. After several minutes of knocking, a female exited the residence and met with officers in a side yard. Carloss joined shortly therafter. Neither pointed out the "No Trespassing" signs to the officers or ask the officers to leave. When asked if officers could enter the residence to look for a gun, Carloss said he would have to ask the owner. Officers asked if they could enter with Carloss and he said yes. In Carloss's room, the officers saw drug paraphernalia and a white powder residue that appeared to be methamphetamine. The owner eventually declined to let the officers search the house and instead asked the officers to leave. They did so but, based on the drug paraphernalia the officers saw in Carloss's room, they obtained a warrant to return and search the house. During the search pursuant to that warrant, officers found "multiple methamphetamine labs" and lab components, a loaded shotgun, two blasting caps, ammunition, and other drug paraphernalia. Carloss alleged that entry violated the Fourth Amendment. The Circuit disagreed, distinguishing Florida v. Jardines. The court of appeals also noted that the agents in Carloss’ case did not take anything to enhance their senses or tell them what was taking place inside the home, unlike the canine in Jardines. The "No Trespassing" signs alone do not have the talismanic quality Carloss attributes to them.

Yates v. Terry, ___ F.3d ___ (4th Cir. No. 15-1555, filed 03/31/15). Brian Yates, was driving on a highway, followed by his mother and brother in another car behind him. Yates passed by defendant-officer Christopher Blair Terry who trailed Yates and eventually pulled him over at a gas station. Terry demanded Yates' driver license. When Yates told Terry that he had no license, but did have his military ID, Terry forced Yates out of the car and ordered Yates to put his hands on the car. Yates complied. By now, Yates' brother and mother had arrived. Yates turned his head to look at them and Terry tased Yates who fell to the ground. Yates' brother asked Terry why he was tasing Yates. Terry responded negatively and tased Yates again. Yates made no attempt to flee but instead grabbed his cell phone and threw it to his brother, telling him to call Terry's correctional officer. Terry tased Yates a third time. Meanwhile, Mrs. Yates fainted. Yates sued and the district court eventually found that Terry had used excessive force. On appeal, the Fourth Circuit held the force was excessive. It generally found that traffic violations alone should not support the use of a "significant level of force" (such as a taser.) Second, Yates was not an objective threat to either Terry or the public. He was unarmed and lying on the ground. Third, he was also compliant to Terry's orders and was not actively resisting arrest. Even to someone not educated in civil rights law, it is clear that some right was being violated. No objective person could have possibly believed that under those circumstances that tasering someone was protected action under qualified immunity.

State v. Ryce, 303 Kan. 899, ___ P.3d ___ (No. 111698, filed 02/26/15). Ryce was driving a car down a street in reverse. Upon stopping him, the officer noticed the usual indicators of alcohol impairment. Ryce refused breath testing and was prosecuted for criminal refusal. Ryce had four prior DUI convictions. He moved to dismiss alleging the state could not penalize him for withdrawing his implied consent (as a condition of having a suspended driver's license). The district court agreed and dismissed the charges. The Supreme Court affirmed. The ultimate question is whether, when a driver exercises the constitutional right to withdraw consent, Kansas may criminally punish the individual for this choice under the criminal refusal statute, K.S.A. 2014 Supp. 8-1025. We conclude it cannot. Applying the Due Process Clause of the Fourteenth Amendment to the United States Constitution, we recognize Kansas has compelling interests in combating drunk driving and prosecuting DUI offenders. Nevertheless, by criminally punishing a driver's withdrawal of consent, 8-1025 infringes on fundamental rights arising under the Fourth Amendment. K.S.A. 2014 Supp. 8-1025, therefore, must withstand strict scrutiny by being narrowly tailored to serve the State's interests. We hold that K.S.A. 2014 Supp. 8-1025 does not meet this test and is facially unconstitutional. See also State v. Wilson, No. 112,009 (driver stopped for improper turn and refused breath test; officer obtained a warrant and blood tested at 0.180), State v. Nece, 303 Kan. 888, (No. 111,401 (driver stopped for defective headlight and blew 0.162; court held DC-70 language defective and should have resulted in suppression), and State v. Wycoff, No. 110,393 (stopped for squealing tires and improper turn; also charged for no ignition interlock device). NOTE: The Court granted a motion for rehearing/modification on 09/26/19. To be argued again on 12/12/16 at 0900.

State v. Gray, Shawnee County Case No. 2014TR5423, filed 09/23/15. Judge Ossman held the criminal refusal statute, K.S.A. 8-1025(b)(1)(A), is unconstitutional. Ossman ruled the statute violates the defendant’s Fifth Amendment right against self-incrimination and the due process clause of the 14th Amendment. Ossman also invalidated the law based on the "unconstiutional conditions doctrine." Ossmann indicated that in granting the request for dismissal, he adopted reasoning put forth last year by Shawnee County District Judge Marc Braun in State v. Wilson, 2013CR1900, filed 5/27/14, where Braun ruled that the Kansas law, which was enacted in 2012 and criminalized the refusal to submit to testing, was unconstitutional. In Braun's case, the officer obtained a search warrant after the defendant refused and the blood test showed a 0.180. Ossmann’s ruling said that while the Kansas Supreme Court heard arguments on similar cases on May 5, 2015, it has rendered no decision in those cases.

Pauly v. White, 814 F. 3d 1060 (10th Cir. No. 14-2035, filed 02/09/16), vacated in a per curium decision, Pauly v. White, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 16-67, filed 01/09/17). New Mexico officers were attempting to locate Daniel Pauly after a nighttime road rage situation. When officers arrived at Pauly's house, they attempted to locate his vehicle without being seen, using their flashlights only intermittently. Pauly and his brother saw the people with flashlights sneaking around and yelled "who are you?" The officers allegedly said, "come out or we are coming in." Pauly and his brother allegedly thought they were intruders from the earlier road rage situation, and armed themselves, shouting "we have guns." Another officer arrived about this time and took cover about 50' away from the house. Pauly fired warning shots out the back door. Then Pauly's brother opened a front window and pointed a handgun in the direction of the newly arrived officer, White, who shot and killed Pauly's brother. Pauly then sued, claiming excessive force. The officers appealed from denial of summary judgment. The Circuit affirmed, holding trier of fact could conclude that the officers' conduct preceding the shooting -- demanding entry into the Paulys' home without identifying themselves -- would reasonably have caused the brothers to arm themselves in defense of their home, as permitted by state law. It also held that Officer White's actions were objectively unreasonable because: (1) the officers were investigating a minor crime, (2) Officer White did not order Pauly to drop his weapon, (3) Officer White was fifty feet away when he shot, (4) both Officer White and Officer Mariscal were behind cover when Pauly opened the window, and (5) a jury could find that Officer White's belief that Officer Truesdale had been shot was unreasonable. The court also found that a reasonable jury could find that Officer White had violated clearly established law by (1) using deadly force even though he was not in danger, and that (2) the circumstances required Officer White to warn Pauly to drop his weapon. Mortiz dissented, and would have granted the officers immunity.

United States v. Houston, ___ F.3d ___ (6th Cir. No. 14-5800, filed 02/08/15). The government placed pole cameras on top of a public utility pole located about 200 years away from Houston's rural farm back yard, and during ten weeks of video capture the government obtained footage showing that Houston, a convicted felon, possessed firearms. Although this ten-week surveillance was conducted without a warrant, the use of the pole camera did not violate Houston’s reasonable expectations of privacy because the camera recorded the same view of the farm as that enjoyed by passersby on public roads.

United States v. Fager, ___ F.3d ___ (10th Cir. No. 15-3104, filed 01/21/16)(2016 U.S. App. LEXIS 995 (10th Cir. Kan. January 21, 2016). Topeka officer Dobler stopped Fager’s car around 8:00 p.m. for a turn signal violation near an apartment complex in a high-crime area. The officer approached the passenger-side of the car and encountered Fager, the driver, and Walls, who was in the front passenger’s seat. The officer noticed Fager’s eyes were watery, his speech was soft, and an unopened can of beer sat in the center console of the vehicle. In addition, Walls continually leaned forward in a way that he made the officer believe that he was trying to obstruct the officer’s view of Fager. After the officer received identification from both men, he discovered that Walls had several outstanding arrest warrants, but he was not told the nature of the warrants. After a back-up officer arrived, the original officer directed Fager to exit his vehicle. After the officer determined Fager was not impaired, he asked Fager for consent to search his vehicle. Fager consented. Because it was cold, the officer gave Fager the option to sit inside the officer’s patrol car instead of standing outside. Fager agreed. The officer then told Fager he wanted to pat him down to make sure Fager did not possess any weapons. Fager did not say anything, but he positioned himself for a pat-down. The officer conducted a pat-down search and found a firearm in the waistband of Fager’s pants. The officer arrested Fager, who was charged with being a felon in possession of a firearm. Fager filed a motion to suppress the firearm, arguing the officer’s pat-down was not supported by reasonable suspicion that Fager was armed and dangerous. The court disagreed. First, while conducting their search of Fager’s car, the officers would have had to turn their backs on Fager. The court noted that Eight Circuit case law had held that when an officer must “turn his or her back to a defendant,” little is required beyond this concern to support the officer’s reasonable suspicion. Second, Walls, a man with several outstanding arrest warrants was still at the scene, and it was reasonable for the officer to believe that Fager and Wall could have mounted a joint attack against the officers. Third, Walls had been acting suspiciously when the officer initially approached the vehicle by blocking his view of Fager. Finally, the stop occurred in a high-crime area at nighttime. Under these circumstances, the court concluded the officer was justified in frisking Fager.

United States v. Rarick, ___ F.3d ___ (6th Cir. No. 14-4212, filed 01/07/16, unpublished). Officer properly seized and searched, pursuant to a warrant, a cell phone that may have contained evidence of the crime of obstruction. Therefore, the child porn that was inadvertently discovered during the search should not be excluded. An officer stopped Rarick on suspicion of a suspended license. During the stop, Rarick became argumentative: he challenged the officer's authority to ask his name or run his license plate, and he refused to produce his driver's license, insurance information, or vehicle registration. At some point, Rarick removed his smartphone from his pocket, held it up, approached the officer, and stated that he was recording her. After some more back-and-forth, the officer seized the phone and got a warrant to search it.

Estate of Samuel DuBose v. University of Cincinnati, Court and case No. unknown. Profiled on NPR 01/20/16. The family of a man shot and killed by a University of Cincinnati police officer who pulled him over for not having a front license plate has reached a $5.3 million settlement with the school, the family and university announced Monday. The deal gives the family of Samuel DuBose $4.85 million and promises free undergraduate tuition for his 12 children who range in age from 4 to 23. The educational component of the settlement is valued at approximately $500,000, WLWT TV reports. Additionally, UC will erect a memorial to DuBose on campus and UC President Santa Ono will also issue an apology to the family for the loss of DuBose. DuBose, 43, was shot and killed behind the wheel of his car on July 19 after Officer Ray Tensing stopped him near campus for missing a front license plate which is required by Ohio law. Tensing is charged with murder and voluntary manslaughter. He has pleaded not guilty.

Armstrong v. Village of Pinehurst, ___ F.3d ___ (4th Cir. No. 15-1191, filed 01/11/16). The Fourth Circuit held that defendant officers used excessive force when drive-stunning five times an arresteee who later died, but were entitled to qualified immunity because the law was not clearly established. Armstrong had mental issues and escaped from a hospital after being declared a danger to himself. The Pinehurst police made contact and tried to negotiate with Armstrong, but he was disconnected with reality and eventually sat down and wrapped himself around a four-by-four post that was supporting a nearby stop sign. The officers tried to pry Armstrong’s arms and legs off of the post, but he was wrapped too tightly and would not budge. They drive stunned him five separate times over a period of approximately two minutes and eventually got him in handcuffs. They then left him facedown in the grass with his hands cuffed behind his back and his legs shackled. He died. The entire encounter had only lasted about six minutes. The Court held that tasing a non-criminal, mentally ill individual, who seconds before had been conversational, was not a proportional response to the resistance the officers encounterd and violated the Fourth Amendment. However, at the time this happened in May 2007, it was not clearly established that using a taser repeatedly on a suspect actively resisting arrest and refusing to be handcuffed amounted to excessive force.

Fifth Amendment

Kansas v. Cheever, ___ Kan. ___, ___ P.3d ___ (No. 99988, filed 07/22/16). After remand from the United States Supreme Court, the Kansas Supreme Court affirms the capital murder conviction of Cheever for killing Greenwood County (Kan.) Matt Samuels on Jan. 19, 2005. See Cheever case below for more information. "[T]he appropriate scope of rebuttal in this case must take into account not just the testimony presented by Cheever's expert on the topic of his methamphetamine intoxication, but also Cheever's own testimony concerning his past use of the drug and the events leading to and constituting the crimes. Much of Welner's testimony concerning details of the crimes, and Cheever's actions constituting them, was responsive to Cheever's own testimony. Having taken the stand, Cheever opened himself to rebuttal testimony just as he opened himself to cross-examination concerning both the substance of his testimony and his credibility as a witness." Johnson, J. dissents, on the basis that the death penalty violates the 8th Amendment.

Case name and no. unknown. Story profiled on CNN on 03/08/16. Baltimore police Officer William Porter can be compelled to testify under immunity against fellow officers charged in connection with Freddie Gray's death, Maryland's appeals court ruled Tuesday

Eighth Amendment

Bloom v. Pompa, ___ F.3d ___ (10th Cir. No. 15-5098, filed July 6, 2016). The Tenth Circuit considered whether a supervising officer was entitled to qualified immunity for ordering a pretrial detainee to be moved to a cell with an inmate the supervisor knew to be violent. In December 2011, Billy Bloom, a pretrial detainee in the Creek County Criminal Justice Center, was involved in an altercation with another inmate. As a result of the incident, shift supervisor Chad Pompa ordered Bloom to be transferred from the holding unit to a segregation cell occupied by Shawn Sexton, an inmate that jail personnel knew to be violent. As officers approached, Sexton warned that he did not want another inmate in his cell and that he would kill Bloom if placed in his cell. When the officers opened the door, Sexton immediately began attacking Bloom, causing severe injuries. Bloom sued Pompa under 42 U.S.C. §1983, asserting violations of the Fourteenth and Eighth amendments. When the district court denied Pompa's motion for summary judgment on qualified immunity grounds, he filed an interlocutory appeal to the Tenth Circuit. On appeal, the Tenth Circuit reiterated that its review from an order denying qualified immunity was limited to (1) whether the facts relied on by the district court were sufficient to show a legal violation, and (2) whether the law was clearly established at the time of the violation. With respect to Bloom's Fourteenth Amendment due process claim, the district court concluded that a reasonable jury could find that Pompa intended to punish Bloom by deliberately placing him in a cell with a violent inmate. The Tenth Circuit affirmed, noting that the facts as reported by the district court were sufficient to show a potential violation and that it was clearly established as of the date of violation that the State may not punish pretrial detainees. Turning to Bloom's Eighth Amendment claim, the Tenth Circuit explained that under the Eighth Amendment, prison official have a duty to provide humane conditions of confinement, including taking reasonable measures to guarantee the safety of inmates. The court reiterated that it lacked jurisdiction to examine the adequacy of the evidence relied on by the district court, but that evidence suggesting Pompa was aware of Sexton's violent temperament was sufficient to trigger liability. The Tenth Circuit affirmed the district court's denial of qualified immunity on both claims.

State v. Carr, 577 U.S. ___, 300 Kan. 1, 185, 331 P.3d 544 (2014), rev'd and remanded on other grounds 577 U.S. ___, 136 S. Ct. 633, 193 L. Ed. 2d 535 (2016);(No. 14-449. filed 01/20/16). Reverses Kansas Supreme Court rulings setting aside death sentences against Sidney Gleason and the Carr brothers. The Court holds the Eighth Amendment does not require capital-sentencing courts to instruct a jury that mitigating circumstances need not be proved beyond a reasonable doubt. Also holds that the Constitution did not require severance of the Carrs’ joint sentencing proceedings. The Eighth Amendment is inapposite when a defendant’s claim is, at bottom, that evidence was improperly admitted at a capital-sentencing proceeding. The question is whether the allegedly improper evidence “so infected the sentencing proceeding with unfairness as to render the jury’s imposition of the death penalty a denial of due process.” In light of all the evidence presented at the guilt and penalty phases relevant to the jury’s sentencing determination, the contention that the admission of mitigating evidence by one Carr brother could have “so infected” the jury’s consideration of the other’s sentence as to amount to a denial of due process is beyond the pale.

Fourteenth Amendment

Cole v. City of Memphis, (6th Cir. No. 15-5725), 830 F.3d 530 (2016). A Memphis, Tenn. Police officer was arrested at night after leaving a nightclub in the city’s Beale Street entertainment district. He filed a class action lawsuit arguing that the city’s alleged routine practice of “sweeping” Beale Street at 3 a.m. on weekend nights violated his constitutional right to intrastate travel/ A jury found that the city, in implementing the policy did not consider whether conditions in the area posed an existing, imminent, or immediate threat to public safety. Because of that finding, the judge ruled that the practice or policy was unconstitutional under strict scrutiny, enjoining its enforcement. A federal appeals court upheld this result, agreeing that strict scrutiny applied. The primary purpose of the sweep, the court said, was to impede travel. It resulted in the broad denial of access to a popular, two-block area of a public roadway and sidewalk, and was more than an “incidental inconvenience.” Under either strict or intermediate scrutiny, the city bore the burden of justifying the sweep to its stated goal of public safety.

Justice Department v. County of Denver - Case No. unknown. Profiled in the Denver Post 11/21/16. The Denver Sheriff Department has run afoul of the U.S. Department of Justice because it made U.S. citizenship a job requirement for its deputies during a hiring spree in 2015 and early 2016. The sheriff’s department will pay a $10,000 fine and will have to sort through old applications to identify people who were eliminated from consideration because they were not U.S. citizens, according to a news release from the justice department.

Dawson v. Coffman, ___ F.3d ___ (10th Cir. No. 15-1365, filed 06/08/16). Where a criminal defendant unsuccessfully argued diminished capacity due to intoxication, the state's subsequent loss of his blood and urine evidence-which had not been used in his trial-did not require a judicial remedy, and denial of that remedy did not violate his Due Process or Equal Protection rights. James Dawson was charged with a variety of violent crimes, for which he defended himself by arguing he had diminished capacity based on being intoxicated and suffering drug-related impairment. Given this defense, the trial court ordered urine and blood samples be drawn from Mr. Dawson. The samples were never tested and a jury found him guilty of second-degree murder, attempted second-degree murder, second-degree assault, and commission of a crime of violence. His urine and blood samples were ultimately lost or destroyed over time. Subsequent to his conviction Colorado enacted Colo. Rev. Stat. § 1-1-414(b) which authorizes judicial remedies when law enforcement negligently loses or destroys biological evidence. Mr. Dawson filed suit in state court alleging he was a victim of the state negligently losing or destroying his urine and blood samples, and seeking relief under the new law. The state court denied his claim, holding the law did not apply to those defending on the basis of diminished capacity and that the law only applied to DNA evidence. This prompted an appeal to the Tenth Circuit, wherein Mr. Dawson argued the limitations in the state law denied him due process and equal protection under federal law. The Circuit Court agreed with the federal district court's holding that statutory limitations on relief for some individuals did not violate federal law. Plainly put, the legislature may set rational limitations on its authorization of a judicial remedy and the limitations in § 1-1-414(b) - that only defendants arguing actual innocence and the loss of DNA evidence, not those arguing diminished capacity and urine or blood evidence may utilize the new law - were rationally based and thus not a violation of federal due process or equal protection law.

Hodes & Nauser v. Schmidt, ___ Kan.App.2d ___, ___ P.3d ____ (No. 114153, filed 01/22/16). The Court of Appeals, in a 7-7 split, affirmed a district court ruling enjoining enforcement of the Kansas Unborn Child Protection from Dismemberment Abortion Act, K.S.A. 2015 Supp. 65-6741. The district court based its order on provisions of the Kansas Constitution Bill of Rights, concluding that they provide the same right to abortion as the Due Process Clause of the Fourteenth Amendment to the United States Constitution.

ADA

Adair v. City of Muskogee, ___ F.3d ___ (10th Cir. No. 15-7067, filed 05/26/16). A firefighter injured his back during a training exercise. A functional capacity evaluation limited his lifting capabilities. After two years on paid leave, he received a workers' comp award saying the limit was permanent. He retired, but argued that his retirement was a constructive discharge in violation of the Americans with Disabilities Act of 1990 (ADA), with him forced to choose between retirement and termination. Rejecting the claim, the court said that "Even if the City regarded Adair as having an impairment, Adair cannot show that he was qualified to meet the physical demands required of firefighters or that the City could reasonably accommodate his lifting restrictions."

Burden of Proof

State v. Herndon, ___ Kan.App.2d ___, ___ P.3d ____ (No. 112479, filed 07/15/16). During a road rage incident, Herndon shot a 22 rifle at victim's truck. Unbeknownst to Herndon, the victim's 9 year old son was in the truck. The Court of Appeals held the state failed its burden of proving aggravated child endangerment. "In the case before us, there is no evidence that Herndon was aware of the presence of Fry's child when he shot at the pickup truck. In the context of our aggravated child endangerment statute, K.S.A. 2015 Supp. 21-5601(b)(1), and the definition of recklessness found in K.S.A. 2015 Supp. 21- 5202(j), we conclude that the State failed to establish that Herndon consciously disregarded a substantial risk that his conduct would place Fry's child in peril. Accordingly, we must set aside this conviction and remand to the district court to vacate Herndon's sentence for this conviction."

State v. Lloyd, ___ Kan.App.2d ___, ___ P.3d ____ (No. 114389, filed 06/17/16/). Lloyd was on probation. The judge revoked him after he was bound over on a new kidnapping charge. The Court of Appeals reversed the revocation. The probable cause standard of proof required to bind a defendant over for trial is a lesser burden of proof than the preponderance of the evidence standard needed to establish a probation violation, and a district court errs when it relies solely on a probable cause finding from a preliminary hearing to find a defendant in violation of his or her conditions of probation.

Civil and Criminal Liability

Epstein v. Epstein, ___ F.3d ___ (7th Cir. No. 15-2076, filed 12/14/16). Barry Epstein sued his estranged wife, Paula, under 18 U.S.C. § 2520, alleging that she violated the federal Wiretapping and Electronic Surveillance Act by intercepting his emails. Barry alleges that Paula violated the Wiretap Act by surreptitiously placing an auto-forwarding “rule” on his email accounts that automatically forwarded the messages on his email client to her. He also claims that Paula's divorce lawyer violated the Act by “disclosing” the intercepted emails in response to his discovery request. The district judge dismissed the suit on the pleadings. The 7th Circuit affirmed in part and reversed in part. The complaint doesn't state a Wiretap Act claim against Paula's lawyer. The lawyer can't be liable for disclosing Barry's own emails to him in response to his own discovery request. The allegations against Paula, on the other hand, technically fall within the language of the Act, (see 18 U.S.C. § 2511(1)(a)) though Congress probably didn't anticipate its use as a tactical weapon in a divorce proceeding.

Gutierrez v. Cobos, ___ F.3d ___ (10th Cir. No. 15-2161, filed 11/15/16). Deputy Gabriel Maynes attempted to stop Anna Gutierrez for running a stop sign. Instead of stopping, however, Gutierrez sped up and continued driving until she reached the apartment complex where her mother, Pasty Flores, lived. When Deputy Maynes saw Gutierrez exit her vehicle and begin running towards Flores's apartment, he fired a taser dart into her back. As Gutierrez pounded on her mother's door, Deputy Maynes caught up and began hitting, kicking, and tasing her. When Flores opened the door, Deputy Maynes pushed Gutierrez inside and continued hitting and tasing her. After Flores pled for Deputy Maynes to stop, he tased her on her leg and threatened to arrest her too. Deputy Maynes eventually handcuffed and arrested Gutierrez, who had to have the taser dart surgically removed from her back, and additionally suffered two fractured ribs. Gutierrez and Flores subsequently sued Deputy Maynes under 42 U.S.C. § 1983, alleging he engaged in excessive force, an illegal entry, and an illegal seizure. The district court granted Deputy Maynes's motion for summary judgement based on qualified immunity, which Gutierrez and Flores appealed. In considering the plaintiffs' claims, the Tenth Circuit focused on whether the plaintiffs had established the violation of a clearly established right. Turning first to the excessive force claim, the Tenth Circuit agreed that summary judgement had been appropriate because the plaintiffs had not cited any authority suggesting Deputy Maynes violated any clearly established law. To support their unlawful entry claim, the plaintiffs argued it was clearly established that an officer cannot enter a home in hot pursuit of a suspect believed to be engaged in a misdemeanor offense. The Tenth Circuit disagreed, pointing out that in Mascorro v. Billings, 656 F.3d 1198 (10th Cir. 2011), it held that the "hot pursuit" exception must involve a "serious offense" and exigent circumstances. But, because Mascorro did not define "serious offense," the court concluded it had not been clearly established as of 2009 that Deputy Maynes's entry into Flores's home was unlawful. Finally, the court affirmed summary judgment on the illegal seizure claim, agreeing with the district court's finding that the plaintiffs had not cited any case law establishing it was clearly established as of 2009 that the use of a taser constituted a "seizure" under the Fourth Amendment. The Tenth Circuit affirmed summary judgement on all claims.

Durkee v. Minor, ___ F.3d ___ (10th Cir. No. 16-1006, 11/14/16). The Tenth Circuit affirmed a decision requiring a sergeant to go to trial on an inmate's failure to protect claim but reversed a decision denying the sheriff summary judgment. James Durkee was an inmate at the Summit County Detention Center. In 2012, Durkee was meeting with a mental health counselor in the detention center's visitation room when he saw, through a window, that Sergeant Ron Hochmuth was escorting inmate Ricky Ramos from a court proceeding to the booking area. Ramos had a history of aggressive behavior at the detention center, including making numerous threats directed at Durkee. Nonetheless, when they arrived in the booking area, Sergeant Hochmuth unshackled Ramos and directed him to return to his housing pod. Instead, Ramos turned around, ran in the visitation room, and assaulted Durkee. Durkee subsequently sued Hochmuth and Sheriff John Minor under 42 U.S.C. § 1983, arguing they had violated his rights under the Eighth Amendment. The district court denied both defendants' motions for summary judgment, and both appealed. Turning first to Hochmuth's appeal, the Tenth Circuit noted that although Hochmuth had been aware of Ramos's aggressive tendencies, he testified he had not known Durkee was in the visitation room when he unshackled Ramos. In Farmer v. Brennan, 511 U.S. 825, 826 (1994), the U.S. Supreme Court held that "an official's failure to alleviate a significant risk that he should have perceived but did not, while no cause for commendation, cannot . . . be condemned as the infliction of punishment." Despite Hochmuth's testimony, the Tenth Circuit held that the issue presented a fact question for the jury, as the jury could reject Hochmuth's testimony based on the fact that Durkee and Ramos had plainly seen one another through the window. The Tenth Circuit affirmed the district court's ruling with respect to Sergeant Hochmuth. Turning next to Durkee's claim against Sheriff Minor in his individual capacity, the Tenth Circuit reiterated that there is no special rule of liability for supervisors. "The test for them is the same as the test for everyone else." Accordingly, to prevail, Durkee was required to show that Sheriff Minor had direct personal responsibility for the alleged deprivation of his rights. Given that the record contained no evidence that Sheriff Minor had been involved until after the altercation, the Tenth Circuit concluded that "basic principals of linear time prevent us from seeing how conduct that occurs after the alleged violation could have somehow caused that violation." The Tenth Circuit reversed the district court's decision with respect to Sheriff Minor and remanded the case for further proceedings.

Maryland v. Nero, (Case No. unknown, Baltimore Circuit Court - decided 05/23/16). A Baltimore police officer was acquitted of assault and other charges in the arrest of Freddie Gray, a young black man who died a week after he was critically injured in police custody. A judge found Officer Edward Nero not guilty of misconduct in office and reckless endangerment. The judge announced his verdict on Monday. Nero was one of six Baltimore police officers charged in the case. He waived his right to a jury trial, opting instead to argue his case before Circuit Judge Barry Williams. An earlier trial for an officer charged with manslaughter in the case ended in a hung jury in December. Gray's death about a year ago led to protests and rioting in the city and fueled the Black Lives Matter movement.

Ocasio v. United States, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 14–361, filed 05/02/16). Ocasio, a former police officer, participated in a kickback scheme in which he and other officers routed damaged vehicles from accident scenes to an auto repair shop in exchange for payments from the shop owners. Petitioner was charged with obtaining money from the shop owners under color of official right, in violation of the Hobbs Act, 18 U. S. C. §1951, and of conspiring to violate the Hobbs Act, in violation of 18 U. S. C. §371. Prosecutors said Ocasio was one of many city officers paid by the owners of Majestic Auto Repair Shop in Baltimore County to send customers to their shop instead of to a city-authorized company. He was sentenced to 18 months in prison. Ocasio claims he didn't violate the law because he never tried to get money from anyone outside the conspiracy. The 4th U.S. Circuit Court of Appeals rejected that argument. The Supreme Court held a defendant may be convicted of conspiring to violate the Hobbs Act based on proof that he reached an agreement with the owner of the property in question to obtain that property under color of official right.

Keiswetter v. State, ___ Kan. ___, ___ P.3d ___ (No. 110610, filed 04/22/16). Zorn, an inmate at Norton, escaped from a work crew and broke in to Helen Keiswetter's house. He shoved her into a closet, causing her to fall and hit her head. She died 8 months later. Her heirs sued the State alleging they negligent failed to prevent the escape. The district court granted the state summary judgement, finding the public duty doctrine applied and the state was immune under the police protection exception in K.S.A. 75-6104(n). The Supreme Court agreed the state was immune under the police protection exception and affirmed. "'[T]he legislature is better equipped to resolve the difficult policy questions inherent in the field of governmental immunity. As judges our desire to achieve what may seem fair to us as individuals cannot overcome the laws enacted by our duly elected legislators.'" Barrett [v. U. S. D. No. 259,] 272 Kan. [250,] 260, [32 P.3d 1156 (2001)] (quoting Brown v. Wichita State University, 219 Kan. 2, 9, 547 P.2d 1015 [1976]).

Welch v. United States, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 15-6418, filed 04/18/16). In Welch, the Supreme Court extended its ruling in Johnson v. United States, allowing it to be applied to those convicted before Johnson was decided. In Johnson, the Court held that the federal three strikes law's residual clause was unconstitutionally vague. That opened up thousands of sentences to challenge and Welch quickly became the most cited case of the Court's last term.

Disability

Hudson v. Board of Directors of the Kansas Public Employees Retirement System, ___ Kan.App.2d ___, ___ P.3d ____ (No. 115120, filed 12/30/16). KPERS appealed the district court's decision finding John Hudson, who was diagnosed with post-traumatic stress disorder (PTSD), was permanently disabled, unable to serve as a police officer, and entitled to disability benefits. The Court of Appeals held the district court's conclusion was correct—the Board's decision was not supported by substantial competent evidence and was arbitrary and capricious. Hudson worked for the Kansas City, Kansas, Police Department (KCKPD) from November 1996 to December 2011. In 2007, Hudson became a detective in the child sex abuse unit. He investigated hundreds of child sex abuse cases, often being assigned a new case every other day. Hudson's health records reflect his work in the child sex abuse unit caused his mental and emotional health to deteriorate. In 2011, Hudson had trouble concentrating on the child sex abuse cases to which he was assigned and was not getting his work done. Hudson covered his patrol car's vehicle locator with foil to jam the signal so he could not be located, and he would tell his supervisors he was performing union duties, when in reality, he would drive to his home, to friends' houses, or to a friend's business to avoid work. By October 2011, Hudson's performance had declined so drastically the department launched an internal affairs investigation into his work activities. The investigation revealed Hudson was driving around town and not investigating his assigned cases. As a result, he was given the option of retiring from the KCKPD or facing criminal charges. Hudson retired from the KCKPD on December 1, 2011. Despite 3 of his doctors stating that Hudson suffered from disabling PTSD, KPERS doctor said he didn't and denied his claim. The Board accepted, without explanation, Dr. Ibarra's medical opinion on Hudson's condition over the opinion of Hudson's three treating physicians. Moreover, Dr. Ibarra never tested or interviewed Hudson and never spoke with any of the treating physicians to discuss the basis of each one's diagnosis of PTSD. The Court of Appeals determined that made the board's decison arbitrary and capricious.

Driver's License Suspensions

Cullison v. Kansas Dept. of Revenue, ___ Kan.App.2d ___, ___ P.3d ____ (No. 114170, filed 05/13/16). An officer saw people on motorcycles late at night revving their engines. He approached and noticed an odor of an alcoholic beverage and other usual indicators of DUI on Cullison. A later breath test showed his bac at 0.189. Cullison's license was suspended and he appealed to district court. At trial he testified that while the motor on his motorcycle ran, the headlight worked, and the motorcycle could be manually propelled, the motorcycle was missing several bolts that made driving it impossible. The district court suspended his license on the premise that Cullison attempted to operate a vehicle while under the influence. The Court of Appeals reversed. If a driver who fails a requested breath test establishes by a preponderance of the evidence that he or she was not operating a vehicle at the time he or she was stopped but merely attempting to operate it, the driver would fall outside the reach of K.S.A. 2015 Supp. 8-1002(a)(2)(A) and the Kansas Department of Revenue would not be statutorily permitted to suspend the person's driver's license.

Pfeifer v. Kansas Dept. of Revenue, ___ Kan.App.2d ___, ___ P.3d ____ (No. 112705, filed 04/01/16). A Hays police officer stopped Pfeifer for an improper left turn and found she was intoxicated. She refused the breath test and requested a hearing on driver's license suspension. The officer appeared and testfied. The hearing officer suspended her license. She appealed. The department of revenue did not subpoena the officer and instead offered the DC-27 as proof of all matters certified therein. The Court held that pursuant to K.S.A. 2015 Supp. 8-1002(b), in all proceedings brought under the Kansas Implied Consent Law, K.S.A. 2015 Supp. 8-1001 et seq., a signed and properly completed Officer's Certification and Notice of Suspension, Form DC-27, or a copy or photostatic reproduction thereof, shall be admissible in evidence to prove the statements contained therein without the necessity for testimony by the certifying law enforcement officer.

Drugs

State v. Pribble, ___ Kan. ___, ___ P.3d ___ (No. 108915, filed 07/15/16). Officers served a warrant on Pribble's residence. Pribble was charged with possessing marijuana, methamphetamine, paraphernalia, and drug-sale proceeds. The State also charged Pribble with two taxation offenses under K.S.A. 79-5208, to-wit: one count of possession of marijuana with no drug tax stamp and one count of possession of methamphetamine with no drug tax stamp. He alleged the convictions were multiplicitous. The Court agreed. The legislature intended to impose a tax on the marijuana or controlled substances possessed by drug dealers and to make it a crime for those drug dealers to fail to evidence the payment of that drug tax with the appropriate stamps. Consequently, the clear purpose of K.S.A. 2010 Supp. 79-5201(c)'s definition of "dealer" is to differentiate between drug dealers and personal-use possessors of drugs, and, thereby, clarify who is a taxpayer under the act that can be subject to the criminal sanction of K.S.A. 79-5208. In that regard, the legislature's designation of more grams to be considered a marijuana dealer than that required to be a methamphetamine dealer has a basis in fact unrelated to establishing a unit of prosecution. Accordingly, we reject the proposition that K.S.A. 2010 Supp. 79-5201(c) clearly indicates a legislative intent to make the possession of two separate drugs two separate units of prosecution under K.S.A. 79-5208. Rosen concurs and dissents, quoting Steppenwolf's "The Pusher": "Fortunately for Pribble, Steppenwolf's off-grid sentence of—"I'd cut him if he stands, and I'd shoot him if he'd run. Yes I'd kill him with my Bible and my razor and my gun"—was not embraced by our legislature when considering the appropriate sanction for violation of this law."

Taylor v. United States, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 14-6166, filed 06/20/16). Taylor and his gang associates were prosecuted for Hobbs Act robberies of marijuana dealers. After a hung jury, in the retrial the Government urged the trial court to preclude Taylor from offering evidence that the drug dealers he targeted dealt only in locally-grown marijuana. The trial court excluded that evidence and Taylor was convicted on both counts. The Fourth Circuit affirmed, holding that, given the aggregate effect of drug dealing on interstate commerce, the Government needed only to prove that Taylor robbed or attempted to rob a drug dealer of drugs or drug proceeds to satisfy the commerce element. The Supreme Court agreed.

State v. Holsted, ___ Kan.App.2d ___, ___ P.3d ____ (No. 112846, filed 04/08/16).

Kansas law makes it a crime to cultivate marijuana. Cultivate means the planting or promotion of growth of five or more plants which contain or can produce controlled substances. K.S.A. 2015 Supp. 21-5701(c). We adopt a test to determine if a plant cutting is a plant. Does the cutting have some visible root formation? If it does, it is a plant. If it does not, it is a cutting and cannot be the basis for a charge of cultivation of marijuana. On March 1, 2013, Kansas City, Kan., officers knocked on Steven Holsted’s front door after receiving complaints of marijuana odors. He invited the officers inside. Once inside, they found 2 grams of marijuana, which Holsted admitted was his. Officers asked to search the house and Holsted consented, according to court documents, so they walked into his attic. There they found an apparent marijuana-growing operation. Along with the 29 small plants, referred to as “cuttings,” they found grow lights and one large marijuana plant with a complete root system. Holsted was convicted of cultivation of marijuana, possession of drug paraphernalia and possession of marijuana. He challenged the charge by claiming his 29 cuttings weren’t plants because they didn’t have roots. The Court of Appeals agreed and, in a unanimous ruling, reversed the conviction for cultivation.

State of Kansas v. City of Wichita, ___ Kan. ___, ___ P.3d ___ (Case No. 113528, filed 01/22/16). A Wichita ordinance that purports to reduce the penalties for possessing small amounts of marijuana is null and void. Wichita voters approved the ordinance in April 2015, with 54 percent of its citizens voting in favor of the measure. The Court held the ordinance was not adopted in accordance with procedures set out in K.S.A. 12-3013(a) and the court thus issues a writ of quo warranto declaring the ordinance null and void. The petition and ordinance were not filed with the clerk as required by the statute, thus the "accompanying petition," and the full ordinance cannot reliably be forwarded by the clerk to the governing body for its careful review.

DUI

City of Dodge City v. Webb, ___ Kan. ___, ___ P.3d ___ (No. 109634, filed 10/21/16), affirming 50 Kan. App. 2d 393, 329 P.3d 515, 522 (2014)(No. 109634, filed 06/13/14). Webb, a two-time DUI offender, argued K.S.A. 2011 Supp. 8-1012(b) was unconstitutional because it allows an officer to request a PBT upon reasonable suspicion—rather than probable cause—that the driver was operating a vehicle while under the influence of alcohol or drugs or both. He further claimed that without the illegal PBT, the officer did not have probable cause to arrest him for DUI. The Court of Appeals rejected these arguments and held that because the officer had probable cause without the PBT results, and because the officer had legal justification for threatening to obtain a search warrant after Webb's initial refusal to take the breathalyzer test, Webb was not improperly coerced into ultimately submitting to the breathalyzer test. A Dodge City officer stopped Webb's vehicle for a tag light violation. The officer noted the odor of an alcoholic beverage, but could not tell if it was coming from the driver (Webb, who denied drinking) or the passengers (who admitted drinking). After getting Webb out of the vehicle, the officer noted a moderate odor coming from him and Webb then admitted to drinking one beer. Webb displayed four out of eight clues of impairment on the walk-and-turn test and three out of four clues of impairment on the one-leg-stand test. A PBT indicated 0.127, and a breath test 0.125. Webb then admitted to six beers, not one. The Court held there was probable cause independent of the PBT, so it need not determine the constitutionality of K.S.A. 8-1012. Further, because the officer was legally entitled to seek a warrant in order to obtain a sample of Webb's blood after he had refused to submit to a breathalyzer test, there was no impermissible coercion. While the statute used to prohibit further testing after a refusal, it no longer does. But see Hoeffner v. Kansas Dept. of Revenue, 50 Kan. App. 2d 878, 335 P.3d 684 (2014), rev. granted 302 Kan. 1009 (2015). Johnson dissents because he disagrees with the court's construction of the implied consent act, and Luckert agrees with him.

State v. Darrow, ___ Kan. ___, ___ P.3d ___ (No. 109397, filed 07/01/16). S. Parker was dispatched to a car up against a chain link fence with the engine running. A very intoxicated female was passed out behind the wheel. When finally awakened, she grabbed at the gearshift lever a couple of times. That was enough under the stipulated facts to establish an attempt to operate the vehicle and convict her of felony DUI. Under the driving under the influence (DUI) statute, K.S.A. 2010 Supp. 8-1567, the term "operate" is synonymous with "drive," which requires some movement of the vehicle. Consequently, an "attempt to operate" under the DUI statute means an attempt to move the vehicle. The taking of actual physical control of a vehicle, without an attempt to move the vehicle, is insufficient to meet the attempt to operate element of DUI.

Bernard v. Minnesota, (No. 14-1470), Birchfield v. North Dakota, 136 S. Ct. 2160, (14-1468 and Beylund v. North Dakota, 14-1506, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (filed 06/23/16). In the absence of a warrant, a state may make it a crime for someone to refuse to take a breath test, but not a blood test, to detect the presence of alcohol in his blood.

State v. Kraemer, ___ Kan.App.2d ___, ___ P.3d ____ (No. 112787, filed 04/29/16). Salina officers stopped Kraemer for failing to signal a turn and found he was DUI. He blew a 0.139 on the breath test. He filed two motions to suppress - one for lack of probable cause to arrest, and the second alleged his consent to take the breath test was coerced based on State v. Nece, 303 Kan. 888 (2/26/16). The district court held consent was coerced, but held the breath test was admissible based on the officer's good-faith reliance on the constitutional validity of K.S.A. 8-1025, which was later struck down. The Court of Appeals affirmed, finding there was probable cause for the arrest and holding that the officer was entitled to good-faith reliance on the statutes in effect at the time.

Employment

Lumry v. State, ___ Kan. ___, ___ P.3d ___ (No. 108425, filed 12/16/16), reversing and remanding 49 Kan. App. 2d 276, 307 P.3d 232 (No. 108425, filed 08/16/13). Lumry, a former KBI agent, sued the KBI as well as three of his former supervisors in their individual capacities for violating his rights under the Fair Labor Standards Act (FLSA) and for retaliatory discharge in violation of the Kansas Minimum Wage and Maximum Hours Law (KMWMHL). Lumry was fired for padding his timesheets. In his civil suit, Lumry claimed he was fired in retaliation for his complaints about working uncompensated overtime in violation of the FLSA. See 29 U.S.C. § 215(a)(3) (2006). The Court of Appeals found the majority rule in federal courts is that public officials may be held liable in their individual capacities for violations of the FLSA if they are acting in the interest of the agency and meet the definition of an employer. It then held that two of the supervisors named in the suit did not meet the definition of "employer" under the FLSA, so Lumry's claims against them necessarily fail. As to Blecha, the undisputed facts failed to establish that Lumry made an unequivocal claim under the FLSA for which the Blecha may have retaliated. Finally, Lumry's claim under the KMWMHL failed because the KMWMHL does not apply to any employer that is subject to the FLSA. The Court affirmed summary judgment for the defendants. Standridge, concurring in part and dissenting in part, would have allowed Lumry to proceed on a common-law claim of retaliatory discharge. The Kansas Supreme Court reversed and held that defendants' failure to cross-appeal from the district court's decision regarding Blecha's "employer" status under the FLSA deprived the Court of Appeals of jurisdiction to reach that issue, so it dismissed the cross-petition for review as to that question. It further held that Lumry's complaint about unpaid overtime was sufficient to preclude summary judgment as to whether he engaged in a protected activity. It agreed with the panel that Kansas law recognizes retaliatory discharge as a common-law tort when an employee is fired for invoking rights under either the FLSA or the KMWMHL. And, it held the panel majority erred addressing sua sponte the adequate alternative remedy question. Stegall dissents, and would hold that the 11th Amendment bars plaintiff's claims against the state.

Hill v. State of Kansas, ___ Kan.App.2d ___, ___ P.3d ____ (No. 114403, filed 12/09/16). Sage Hill, a Kansas Highway Patrol (KHP) trooper represented by Morgan Roach, was fired for rude and crude conduct during a traffic stop and insubordination during a Lieutenant's investigation of the complaint. Hill appealed to the civil service board, which reinstated him. Upon reinstatement, he was transferred from Troop H (Columbus) to Troop E (Garden City). Hill tried to appeal to the civil service board twice, but they ended up dismissing his appeal. Hill then sued, claiming retaliation for having exercised his rights. The district court granted defendants summary judgment. The Supreme Court reversed, holding: (1) that Hill's suit for retaliatory job placement cannot proceed because it is not a valid common-law tort and (2) that Hill's suit against the State is barred under K.S.A. 2015 Supp. 75-6103(a) because Hill is not suing for a recognized tort. Accordingly, the trial court erred when it denied the defendants' motions to dismiss. On the retaliation claim, Hill failed to present evidence to establish a prima facie case of retaliation because there was no evidence that his placement in Troop E constituted adverse employment action. Nevertheless, even if there was evidence supporting that Hill's placement in Troop E constituted an adverse employment action, summary judgement was still appropriate because Hill failed to provide evidence establishing a causal connection between his successful KCSB appeal and his job placement in Troop E.

Bauer v. Lynch, 812 F.3d 340 (4th Cir. No. 14-2323, filed 01/11/16). "Put succinctly, an employer does not contravene Title VII when it utilizes physical fitness standards that distinguish between the sexes on the basis of their physiological differences but impose an equal burden of compliance on both men and women, requiring the same level of physical fitness of each."

Forfeiture

State v. One 1995 Chevrolet Caprice Classic/Impala SS, ___ Kan.App.2d ___, ___ P.3d ____ (No. 114952, filed 09/30/16). The Highway Patrol filed a forfeiture action against the defendant property after it was used in a felony fleeing and eluding. No one filed a claim, but the purported owner showed up at a hearing and desired to contest the forfeiture and the district court let him. The district court ordered the car's return to the purported owner. The Court of Appeals reversed, and remanded to a different judge (than Ron Svaty) to award the property to the Highway Patrol. Strict compliance with K.S.A. 2015 Supp. 60-4111 is mandatory for a person to establish standing to dispute a proposed forfeiture.

Luis v. United States, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 14-419, filed 03/30/16). Luis was charged with paying kickbacks, conspiring to commit fraud, and engaging in other crimes all related to health care. See §1349; §371; 42 U. S. C. §1320a–7b(b)(2)(A). The Government claimed that Luis had fraudulently obtained close to $45 million, almost all of which she had already spent. Believing it would convict Luis of the crimes charged, and hoping to preserve the $2 million remaining in Luis’ possession for payment of restitution and other criminal penalties (often referred to as criminal forfeitures, which can include innocent—not just tainted—assets, a point of critical importance here), the Government sought a pretrial order prohibiting Luis from dissipating her assets. See 18 U. S. C. §1345(a)(2). And the District Court ultimately issued an order prohibiting her from “dissipating, or otherwise disposing of . . . assets, real or personal . . . up to the equivalent value of the proceeds of the Federal health care fraud ($45 million).” The Supreme Court, in a 5-3 decision, held the pretrial restraint of legitimate, untainted assets needed to retain counsel of choice violates the Sixth Amendment.

Immigration

United States v. Texas, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 15-674, filed 06/23/16). The Supreme Court split four to four in a case challenging one President Obama's signature immigration reform efforts. The case, was one of the Court's highest profile disputes of the term, touching on a host of significant issues, from the ability of states to challenge federal immigration programs, to the extent of executive branch power, and to, not insignificantly, the status of millions of immigrants. The split essentially puts the program, Deferred Action for Parents of Americans and Lawful Permanent Residents or DAPA, on hold for the foreseeable future, leaving in place an injunction shutting down the program nationwide.

KORA

State ex rel. Cincinnati Enquirer v. Ohio Dept. of Pub. Safety, 148 Ohio St.3d 433, 2016-Ohio-7987, 12/06/16. Video footage from police cruiser dashcams is a public record that, with some exceptions, should be promptly released upon request. The Ohio Supreme Court's unanimous decision came in a case involving a State Highway Patrol chase last year on Interstate 71. The state denied a request by The Cincinnati Enquirer for video of the Jan. 22, 2015, pursuit, saying the footage was a "confidential law enforcement investigatory record" and, thus, an exception under public records law. The video documents the troopers' real-time investigative activities, the state argued. The Supreme Court rejected the state's arguments, though the court said some material could be shielded on a case-by-case basis if it was deemed part of a criminal investigation. "The dash-cam recordings fit within the definition of a 'record' because they document governmental activities, decisions, and operations during a traffic stop and pursuit," Justice Judi French wrote in the court's opinion. French said about 90 seconds of the video — when the suspect was taken to a cruiser, read his rights and questioned — could have been shielded as part of the investigation. "In the end, we hold that decisions about whether an exception to public-records disclosure applies to dash-cam recordings require a case-by-case review to determine whether the requested recordings contain investigative work product," French wrote. The court denied the newspaper's request for attorneys' fees, saying the state acted reasonably in withholding the video until the criminal case was over. That brought a rebuke from Justice William O'Neill, who said the fees should have been granted.It is "wrong for this court to recognize the clear public interest in police dash-cam recordings and then to deny the Enquirer reasonable attorney fees after it shed light on this ongoing dispute between the state's need for privacy and the public's right to know what is going on," O'Neill wrote. Still pending before the court is a related argument over police body camera footage.

Case Name and Number Unknown. Reported in The Chicago Tribune 07/08/16). An Illinois appeals court overturned an injunction that had blocked the release of decades of records of citizen complaints against Chicago police officers, ruling that the documents must be made public. A unanimous three-judge panel ruled that the disciplinary records must be released under the Freedom of Information Act. The Fraternal Order of Police, which represents rank-and-file officers, had sued in 2014 to block the records from being released, arguing that its collective bargaining agreement with the city required that any disciplinary records more than 4 years old be destroyed. That same year, Cook County Judge Peter Flynn granted an injunction to the FOP barring the release of complaint records against thousands of current and former officers going back decades. The Chicago Tribune joined in an appeal of that decision with the city and the Chicago Police Department. In its decision, the appeals court panel found that Flynn had erred in issuing the injunction, concluding that a clause in the union’s bargaining contract requiring the destruction of public records after four years was “legally unenforceable.” “In light of these public policy considerations and the purpose of the FOIA to open governmental records to the light of public scrutiny, an award in the pending arbitration proceedings would be unenforceable if it circumvented the City’s required compliance with the FOIA requests at issue.” “Therefore, there was no legal basis for the circuit court to enjoin defendants from releasing the requested records.” The union could appeal the case to the Illinois Supreme Court, a move that would block the release of the records while the state’s highest court decided whether to hear the case.

The Tennessean v. Metropolitan Government of Nashville, 485 S.W.3d 857 (2016). A media organization had no right under the state's public records act to request information related to an ongoing criminal investigation during the pendency of that criminal case and any collateral challenges. In so holding, the court explained: "if the media could make a public records request and obtain the investigative files, then the defendant and potential jurors could learn about the State's case against the defendant by reading a newspaper or watching a television news broadcast. This absurd result was not intended by the Legislature and would have a negative impact on a police department's ability to investigate criminal activity and a defendant's ability to obtain a fair trial."

Labor

Tyson Foods, Inc. v. Bouaphakeo, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 14-1146, filed 03/22/16). In a putative employment class action brought by meat processors, alleging that the donning and doffing of safety gear were integral and indispensable to their hazardous work and that employer's policy not to pay for those activities denied them overtime compensation required by the Fair Labor Standards Act of 1938 (FLSA) and violated Iowa wage law, the Eight Circuit's affirmation of the District Court's judgment in worker's favor is affirmed where District Court did not err in certifying and maintaining the class because common questions, such as whether donning and doffing protective gear was compensable under the FLSA, were susceptible to classwide resolution even if not all of the workers wore the same gear.

LEOSA

Duberry v. District of Columbia, ___ F.3d ___ (D.C.Cir. No. 15-7062, filed 06/03/16). Four retired correctional officers claimed that the District of Columbia improperly deprived them of their federal right to carry a concealed weapon under the Law Enforcement Officers Safety Act (LEOSA), 18 U.S.C. 926C. They claimed that they met the statutory requirements but that they were unable to obtain firearms training because the District refused to certify that, as corrections officers, they had the power to arrest, specifically to arrest parole violators. The federal appeals court found that the complaint sufficiently alleged that they had been unlawfully deprived of a concrete individual right designed to benefit them, which could be remedied under 42 U.S.C. Sec. 1983.

Miscellaneous

Nichols v. United States, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 15-5238, filed 04/04/16). A convicted sex offender who fled the country without notifying authorities did not violate the Sex Offender Registration and Notification Act. Lester Ray Nichols had been on the sex offender registry in Kansas for a year when he up and moved to the Philippines. The Court found that SORNA did not require offenders to notify authorities when they left U.S. jurisdiction. SORNA is not international in scope, meaning that the Philippines were not a "jurisdiction" under the act. The government argued, and the Tenth Circuit agreed, that when a sex offender "leaves a residence in a state, and then leaves the state entirely, that state remains a jurisdiction involved" under the law. The Supreme Court flatly rejected that interpretation. SORNA speaks only of where an offender resides, not where he will reside. If an offender leaves SORNA's jurisdiction, he has no further obligation to update his registration. "A person who moves from Leavenworth to Manila no longer 'resides' (present tense) in Kansas," Alito explained. The decision has limited reach. After Nichols was arrested, Congress enacted the International Megan's Law to Prevent Child Exploitation and Other Sexual Crimes Through Advanced Notification of Traveling Sex Offenders. That act does criminalize failing to provide SORNA-mandated information when traveling internationally; it simply wasn't in effect at the time Nichols fled.

Labor

Encino Motorcars, LLC v. Navarro, ___ U.S. ___, 136 S. Ct. 890, ___ L.Ed.2d ___ (No. 15-415, filed 06/20/16). (2016). The Department of Labor’s (“DOL”) 2011 regulation classifying vehicle “service advisors” as eligible for overtime pay under the Fair Labor Standards Act (“FLSA”) was not enforceable. The DOL failed to sufficiently explain and support its 2011 change in its long-standing position that service advisors were exempt from overtime. The Ninth Circuit had upheld the regulation (codified at 29 C.F.R. § 779.372(c)(4)). For decades, the DOL had taken the position that service advisors employed by car dealerships were exempt employees who were not entitled to overtime pay. The 2011 regulation directly contradicted that long-standing interpretation, leaving dealers who had relied on the prior interpretation in a difficult situation. Most importantly, the DOL offered little to no explanation for the shift in its viewpoint. Due to the insufficient reasoning offered in support of the DOL’s new interpretation of the FLSA, the Court held that the 2011 regulation should not be enforced as law.

Offender Registration

State v. Henry Petersen-Beard, ___ Kan. ___, ___ P.3d ___ (No. 108061, filed 04/22/16). Lifetime postrelease registration for sex offenders mandated by the Kansas Offender Registration Act, K.S.A. 22-4901 et seq., does not constitute punishment for purposes of applying provisions of the United States Constitution. Contrary holdings in State v. Redmond, 304 Kan. ___, ___ P.3d ___ (No. 110,280, this day decided), State v. Buser, 304 Kan. ___, ___ P.3d ___ (No. 105,982, this day decided), and Doe v. Thompson, 304 Kan. ___, ___ P.3d ___ (No. 110,318, this day decided), are overruled. Johnson, Beier and Rosen dissent.

Protection From Abuse

Kerry G. v. Stacy C., ___ Kan.App.2d ___, ___ P.3d ____ (No. 114757, filed 12/09/16). Stacy C. appealed a district court's decision to grant an order of protection against him and in favor of Kerry G., a woman he had dated. Stacy contended that there wasn't sufficient evidence of bodily injury to constitute abuse under the Protection from Abuse Act, K.S.A. 60-3101 et seq. But Kerry testified to Stacy's unwanted sexual contact with her—actions that would constitute rape under Kansas criminal law. Any unwanted sexual touching causes bodily injury under the Act per K.S.A. 60-3101(b). The Court of Appeals affirmed.

Traffic Camera Enforcement

Brooks v. City of Des Moines, ___ F.3d ___ (8th Cir. No. 15-2781, filed 12/01/16). Rebuffing a litany of arguments raised by traffic ticket recipients, the Eighth Circuit has upheld a Des Moines ordinance which authorized an Automated Traffic Enforcement (ATE) system operated by a third-party contractor and established municipal court jurisdiction over ATE violations. The drivers' unsuccessful arguments included due process, preemption, right to travel, privileges and immunities, unjust enrichment and more. The drivers cited a provision of Iowa law which states "An officer authorized by a city to enforce a city code or regulation may issue a civil citation to a person who commits a municipal infraction," arguing that the City's process improperly delegated power to Gatso, a third party. The court cited a similar ATE case, Hughes v. City of Cedar Rapids, No. 15-2703, (8th Cir. 2016), which had articulated that a municipality may delegate properly duties which do not involve discretion or judgment. Because such delegation was proper, there was no unjust enrichment by Gatso. The Hughes decision also put to rest the drivers' claims that the ATE system violated their right to interstate travel and their Privileges and Immunities protections. It found that the ATE system did not discriminate against drivers of any jurisdiction and did not impair travel.

Sentencing

State v. Tofoya, ___ Kan. ___, ___ P.3d ___ (No. 107684, filed 06/17/16). Tafoya was convicted by a jury in 2008 of a fourth offense driving under the influence and was sentenced to 180 days in jail, 12 months' postrelease supervision, and a mandatory $2,500 fine. On direct appeal, the Court of Appeals ruled that the district court had erred by imposing a mandatory fine without making the necessary factual findings concerning Tafoya's financial condition. State v. Tafoya, No. 100,784, 2010 WL 5185473, at *9 (Kan. App. 2010) (unpublished opinion), rev. denied 293 Kan. 1113 (2011) (Tafoya I). Subsequent to the remand before before further district court proceedings, the legislature repealed the lifetime lookback and went a July 1, 2001 lookback. Tayofa, who case came up for remand hearing in 2012, argued he should get the benefit of the amendment. The district court and Supreme Court disagreed. The court held that a sentence is not rendered illegal simply because the district court judge fails to consider (or fails to state on the record that he or she has considered) the financial resources of the defendant when determining either the discretionary amount of a fine or the discretionary method of payment. Moreover, a remand from an appellate court to a district court pursuant to these authorities to correct this error is, in substance, not a remand for resentencing. As such, the Tafoya I panel was substantively correct when it limited its mandate to vacating the fine and instructing the district court to reconsider "the method of payment of the fine."

Hurst v. Florida, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 14–7505, filed 01/12/16). Florida’s capital sentencing scheme violates the Sixth Amendment. Any fact that “expose[s] the defendant to a greater punishment than that authorized by the jury’s guilty verdict” is an “element” that must be submitted to a jury. Florida requires not the jury but a judge to make the critical findings necessary to impose the death penalty. That Florida provides an advisory jury is immaterial. Hurst had the maximum authorized punishment he could receive increased by a judge’s own factfinding.

Social Media Career Suicide

Melissa Adamson, Pittsburgh PA. Melissa Adamson, a part-time police officer, posted a picture on Snapchat with a racial slur that cost her two jobs. The picture showed her in uniform and was captioned with "I am the law, Nigga." One police department fired her and she also resigned from her part-time job at another department Tuesday night. A police chief said that she was on the force for less than a year. Adamson issued an apology after her resignation. "I don't want this to affect how I do my job. I don't want people to look at me differently, thinking that I can't build myself up to the standard of a police officer," Adamson said. "Again, it was a stupid mistake. It shouldn't have been posted in general, regardless of how my intentions were." Adamson said that the photo was posted months ago when she worked for another police department.

Rodney Lee Wilson, Overland Park, KS. A Kansas cop was fired for making bizarre online threats against a complete stranger’s young daughter after the July 7, 2016, attack on Dallas police. Officer Rodney Lee Wilson was dismissed from the Overland Park force on 07/08/16 Friday after he commented on a public photo of LaNaydra Williams’ daughter, India — a 5-year-old who lives about 500 miles away in Dallas. “We’ll see how much her life matters soon,” he wrote on a 2014 photo showing little India posing in a pair of boots. “Better be careful leaving your info open where she can be found :) Hold her close tonight it’ll be the last time.” The chilling comment came just after five Dallas cops were killed while protecting an anti-police brutality protest downtown.

Title 7

Bonenberger v. St. Louis Metropolitan Police Department, No. 14-3696 (8th Cir. Jan. 19, 2016). A white Sergeant applied for Assistant Director of the Police Academy despite not having the minimum three years of supervisory experience and two years of teaching experience. A lieutenant told him he should not bother applying because "the job was going to a black female." That person, Sergeant Taylor, also lacked the minimum experience and had less supervisory experience, less teaching experience, and scored lower than Bonenberger on her performance evaluations, but got the job anyway. Bonenberger sued under §§1983 and 1981, alleging he was not hired because of his race. The case went to trial and the jury found in favor of Bonenberger, awarding both actual and punitive damages. The Police Department moved for judgment as a matter of law and, upon losing that motion before the trial judge, appealed to the Eighth Circuit. The Circuit found discriminatory intent and rebuffed the Police Department's argument that no adverse employment decision occurred because the position sought was not a promotion. The court found that denial of a transfer can constitute an adverse employment decision if the new positions offers materially different working conditions. The evidence showed the Assistant Academy Director job came with more supervisory duties, a regular working schedule and hours, greater prestige, and significantly increased promotion potential once performed. Thus, the Circuit Court found the lower court properly denied the motion for judgment as a matter of law and affirmed its denial.

Use of Force Immunity

State v. Uk, ___ Kan. ___, ___ P.3d ___ (No. 113900, unpublished, filed 10/07/16). Uk shot his brother, who was attacking his mom at the time, and was charged with attempted voluntary manslaughter. Prior to trial, the district judge granted Uk's motion to dismiss on the basis of stand your ground immunity. The Court of Appeals, in a 2-1 decision, reversed. “There was no evidence presented that Uk (or a reasonable person) would have known or believed that [his mother] was at risk of ‘imminent death or great bodily harm,’” Buser, along with Judge David Bruns, ruled that Ear stopped hitting his mother after the first shot was fired, making a second and third gunshot unnecessary. Court of Appeals Chief Judge Thomas Malone disagreed. In a dissenting opinion, Malone argued Uk was authorized under the law to use deadly force in this case. “Ear savagely attacked Kraus and was beating her with his fists,” Malone wrote. “Kraus had blood all over her face. She testified that Ear hit her so hard that she almost blacked out and her face swelled up and turned black.” Because the gunshots were fired in rapid succession, with only one or two seconds of delay, Malone determined the state failed to prove Uk’s use of force in defense of his mother was unlawful.

State v. Barlow, ___ Kan. ___ No. 108830, filed 02/19/16. This case was decided under the "stand your ground" immunity statute, K.S.A. 2014 Supp. 21-5231. Basically, after a jury convicts you of attempted 2d degree murder, a judge can turn around and acquit you based on stand your ground immunity, even though you never raised the immunity issue. Barlow, his buddy J.M.-M. and Barlow's ex-girlfriend T.S. were all drinking wine. T.S. apparently passed out, and J.M.-M. got on top of her, put his hands in her panties and began masturbating. Barlow, attempting to stop the rape, tried to shoot J.M.-M. in the back of the head, but the gun apparently malfunctioned. Barlow was convicted by a jury of attempted 2d degree murder, but the district judge set the verdict on that count aside, holding that Barolow was immune. The Court of Appeals reversed and reinstated the conviction. The Supreme Court reversed the Court of Appeals, holding the district judge's action was an acquittal and unappealable.




2015 Case Update List

January 1, 2015 through December 31, 2015 (or thereabouts)

Quick Links to prior year lists.

1st Amendment

Cressman v. Thompson, ___ F.3d ___ (10th Cir. No. 12-6151, filed 08/04/15). The State of Oklahoma requires citizens to choose either the state's standard license plate depicting a Native American shooting an arrow at the sky or pay an additional fee for a specialty license plate. Cressman objected to the new design based on his belief that it conveyed a message of multiple gods and "the arrow as an intermediary for prayer." He filed suit under 42 U.S.C. § 1983 for violation of his First Amendment rights. The district court dismissed Cressman's claim for failure to state a claim upon which relief could be granted. Cressman appealed. The Tenth Circuit first considered whether the license plate's image could be considered "pure speech." The court acknowledged that "pure speech" activities such as fiction, dance, and music without words are "rigorously protected," but emphasized that whether an image is or is not "pure speech" is dependent on context. The court held that mass-produced images were not a matter of self-expression or creativity, but rather were designed to "market Oklahoma as a tourist destination." Thus, the court concluded, the image was not "pure speech" subject to First Amendment protections. Next, the court addressed Cressman's claim that the Native American image constituted symbolic speech that communicated the ideas of ritualistic prayer and pantheism. The court viewed the image under the lens of a "reasonable observer" and the inferences and ideas he or she would draw from the license plate. The court agreed the image was symbolic speech, but concluded the only message a reasonable observer could derive from it was that Oklahoma's history and culture were strongly influenced by Native Americans. Because Cressman repeatedly agreed he did not object to that message, the Tenth Circuit held that Cressman failed to state a viable claim under the First Amendment.

Siefert v. Wyandotte County, ___ F.3d ___ (10th Cir. No. 13-3153, filed 02/27/15). A former Kansas City, Kansas, police detective who refused to conceal a motorist’s beating by federal agents is entitled to have a jury decide whether his employer punished him for truthfully testifying about his investigation into the incident. The 10th Circuit Court of Appeals said a lower court was wrong when it summarily threw out without trial the lawsuit filed by former detective Max Seifert against the Unified Government of Wyandotte. The court remanded the case back to U.S. District Court Judge Thomas Marten so a jury can decide the facts. Seifert alleges in his lawsuit that he has faced retaliation after investigating Drug Enforcement Administration agents involved in a 2003 “road rage” incident that left a man with permanent brain damage. See Bowling v. United States, 740 F. Supp. 2d 1240 (D. Kan. 2010). Siefert was later terminated from the Wyandotte County Sheriff's Office for credibility concerns expressed by AUSA Tara Morehead, see United States v. Elam, No. 98-20037-01 (D. Kan. Sept. 15, 1998). The order suppressed evidence obtained under a search warrant for drug evidence because Siefert had seized a large number of allegedly stolen items not covered by the warrant. The judge stated that she did not believe Plaintiff’s account of his conversation with the defendant concerning those items. Siefert contends he was removed from investigations and his reserve commission revoked as punishment for his testimony on behalf of the injured man. The appeals court also found that Seifert had a First Amendment speech right to testify on behalf of the injured man. All the legal maneuvering stems from a 2003 minor car accident involving motorist Barron Bowling and a DEA agent traveling in an unmarked car. The accident was later found to be the agent’s fault, but when Bowling refused to stop the DEA agent called for backup. When he was finally stopped, the men beat him. Seifert investigated the incident. Seifert was initially subpoenaed as a defense witness in a 2005 criminal trial in which the beaten motorist was found not guilty of a felony charge related to the accident. Seifert testified again in 2010 in the civil case brought by the motorist against the United States. In that separate case, U.S. District Judge Julie Robinson excoriated the Kansas City Police Department in a scathing 2010 decision for the “shameful” way it treated Seifert, whom she called the most credible of all witnesses. The judge awarded the motorist $833,250 in damages against the DEA. Seifert was shunned and treated as a pariah by his police colleagues and superiors following his testimony. After Seifert’s forced retirement from law enforcement in 2005, he was denied a commission that would allow him to work as a security guard. “Seifert was balkanized for crossing the ‘thin blue line,'” Robinson wrote, adding that Seifert had conducted a thorough investigation and lost his career over the Bowling case.

2d Amendment

United States v. Mariano Meza-Rodriguez, ___ F.3d ___ (7th Cir. No. 14-3271, filed 08/20/15). Non-citizens have a right to bear arms, even if they are in the country illegally, kind of. The ruling overturns a district court finding that the Second Amendment doesn't protect unauthorized aliens. In so holding, the Seventh created a split with the Fourth, Fifth, and Eighth Circuits, all of which have ruled otherwise. But, there's a catch. While the right to bear arms extends to unauthorized non-citizens in the U.S., the Second Amendment also allows for limits. That includes a federal law banning unauthorized immigrants and nonimmigrant visa holders from possessing firearms, the court concluded. Mariano Meza-Rodriguez was arrested in 2013 with a single .22 caliber cartridge. Meza-Rodriguez was arrested after a particularly rough night in Milwaukee, after he pulled a gun in one bar and got into a brawl in another. The right to bear arms is not unlimited, the court explained; the right is subject to reasonable regulations. Applying intermediate scrutiny to the federal ban on arms possession by unauthorized aliens, the court found the law to be reasonable. Since unauthorized aliens "often live largely outside the formal system" and are "harder to trace and more likely to assume a false identity," the government may rationally limit their access to firearms.

Deffert v. Grand Rapids, ___ F.Supp. ___ (D. Mich. 2015). When a man armed with a loaded assault pistol strapped to his leg, dressed in camouflage, and singing to himself began walking in front of a Grand Rapids, Mich., church one snowy Sunday morning in March 2014, an alarmed churchgoer called 911. When police arrived, they took the man's gun, and briefly handcuffed him while they questioned him. The man, Johann Deffert, an "open carry" gun advocate, then sued police saying they had violated his constitutional rights. A federal judge disagreed. U.S. District Judge Janet Neff tossed Deffert's lawsuit, saying the police officer "was justified in following up on the 911 call and using swift action to determine whether plaintiff's behavior gave rise to a need to protect or preserve life ... in the neighborhood." Neff's decision comes as police agencies around Michigan are grappling with increasingly contentious clashes with gun advocates who are showing up at places like churches, schools and government complexes armed with assault rifles and handguns, part of their campaign to educate residents on gun laws, and desensitize the public to the sight of guns. Michigan's controversial "open carry" laws allow people with concealed carry permits to take guns into so-called pistol-free zones, such as schools, as long as the weapon is visible. There is no state law regulating open carrying of weapons in other areas as long as the weapon is in plain view, according to Michigan State Police.

Case Name Unknown - from Detroit Free Press. In July 2013, Sterling Heights police were flooded with 911 calls about two heavily armed men, walking on 15 Mile in front of Henry Ford Medical Center. One was dressed all in black, wearing sunglasses, carrying a rifle. The other had a AK-47 assault rifle strapped across his chest. Both had handguns. Police arrived and one of the gunmen began filming. Police disarmed them and cuffed them, then ran background checks to see if they had weapons permits or any criminal history. They were released after 10 minutes and their weapons returned. Both filed suit, saying police had violated their constitutional rights. Again, a federal judge disagreed. "The single reasonable conclusion is that plaintiffs were knowingly acting in a provocative manner hoping to foment an interaction and cause a disturbance," said U.S. District Judge Robert Cleland in his 2014 ruling. "As events show, they succeeded nicely."In tossing out the suit, the judge said, the two men, in effect, were disturbing the peace and loitering when police arrived, and that the subsequent investigation and brief detention was justified as a result.

Brady Center v. Brownback, F.Supp. ___ (No. 14-CV-2327-JAR, filed 6/5/15). Brady Center's challenge to the constitutionality of Kansas' law, known as the Second Amendment Protection Act (K.S.A. 50-1201 - 50-1211), was dismissed for lack of standing. A provision of 2013 Senate Bill 102 exempts firearms manufactured and owned in Kansas from being subjected to federal law, regulation or authority. The bill's supporters did soften the measure by dropping language calling for arrest or detention of federal agents who sought to enforce federal gun control in Kansas. Kansas Attorney General Derek Schmidt anticipated a legal challenge to the law and requested the Legislature budget $225,000 over a two-year period to cover costs of a legal contest. "Brady Campaign has not shown that any one of its individual members suffers anything but a wholly speculative—much less a “certainly impending”—prospect of future injury."

Fyock v. City of Sunnyvale, ___ F.3d ___ (9th Cir. No. 14-15408, filed 03/04/15). In this case, an ordinance enacted by defendant City of Sunnyvale restricted possession of "large capacity magazines," statutorily defined as a detachable immunity feeding device capable of accepting more than ten rounds. Plaintiffs claim that the ordinance violates their Second Amendment right to keep and bear arms and that they will be irreparably harmed if the ordinance is not immediately enjoined. Order denying plaintiffs' request to preliminarily enjoin the ordinance is affirmed, where: 1) intermediate scrutiny was appropriate; 2) the City's interests in promoting public safety, reducing violent crime, and reducing the harm and lethality of gun injuries in general, were substantial and important government interests; and 3) the district court did not abuse its discretion in determining, on the record before it, that the City presented sufficient evidence to show that the ordinance was likely to survive intermediate scrutiny and that plaintiffs failed to demonstrate that they would like succeed on the merits of their claim

Norman v. Florida, ___ Fl.App. ___ (No. 4D12-3525, filed 02/18/15). Florida’s ban on open carry, while permitting concealed carry, does not improperly infringe on Florida’s constitutional guarantee, nor does it infringe on “the central component” of the Second Amendment—the right of self-defense.

4th Amendment

State v. Thomas, ___ Kan. ___, ___ P.3d ___ (No. 110585, filed 07/24/15). Eddie Thomas, Jr. shot and killed Christopher Dotson after agreeing to have sex with Dotson in exchange for money. Thomas claimed a search warrant should not have issued because it contained un-Mirandized statements. Assuming for the purposes of argument the un-Mirandized statements should not have been included, the Court found the affidavit stated the following lawfully obtained information: Dotson was found dead in his apartment on August 25, 2010; he died from a single gunshot wound to the head; he was last seen around 8:30 p.m. on August 22, 2010; his cell phone revealed multiple communications between himself and Thomas on the evening of August 22, 2010; during the course of their August 22nd communications, Dotson offered to pay Thomas $500 in exchange for sex; Dotson withdrew $500 from his ATM on the evening of August 22, 2010; and Thomas admitted to going to Dotson's apartment on the evening of August 22, 2010. The Court concluded that the affidavit contained sufficient evidence of motive and opportunity to commit the crime and therefore supported a finding of probable cause apart from Thomas' un-Mirandized confessions.

United States v. Archuleta, ___ F.3d ___ (10th Cir. No. 13-4151, filed 07/16/15). A Utah officer stopped a bicycle without a headlight at night in a parking lot. After stopping Archuleta, the officer inquired what as to the contents of a black bag Archuleta was carrying on his back and was told it contained a firearm (disassembled and unloaded). The officer removed the bag and put it on the hood of the car. He then ran a warrants and records check and found a prior misdemeanor conviction for drugs. The bicyclist then admitted to the officer he was a current drug user. The officer arrested Archuleta, and he was eventually charged with being a drug user in possession of a firearm in violation of 18 U.S.C. § 922(g)(3). Archuleta moved to suppress the evidence obtained during his encounter with the police. The district court granted Mr. Archuleta’s motion to suppress and excluded from evidence his statements and the items seized from his possession. The government appealed. The Tenth Circuit affirmed. .The court’s ruled there was insufficient reasonable suspicion to extend the initial stop to question Archuleta about his criminal history. It said the following four factors cited by the government did not amount to reasonable suspicion: : (1) Mr. Archuleta’s possession of the firearm; (2) the time of day (approximately 1:25 a.m.); (3) the “high-crime area”; and (4) Mr. Archuleta’s criminal history.

State v. Cox, ___ Kan.App.2d ___, ___ P.3d ____ (No. 1123871, filed 04/10/15). Cox left stuff, including her purse and some drugs, in a friend's car. That friend got stopped by a trooper who suspected her of identity theft. The friend told the trooper she did not have any ID, but the trooper noticed that several bags, including two purses, were in the back of the friend's vehicle. The driver told the trooper the bags belonged to Cox. The trooper called Cox to verify. She verified, and described the bags, and even some of the contents. The trooper acknowledged that Cox never gave him consent to open her bag, and further acknowledged that Cox never granted him permission to search for a wood sander she claimed would be in Buckle bag. The district court's decision to suppress the evidence is affirmed. Any warrantless search is per se unreasonable unless it falls within one of the exceptions to the search warrant requirement recognized in Kansas. The State has the burden to show an exception, and did not present sufficient evidence of implied consent. Nor does good faith excuse the warrantless search. The trooper was not relying in good faith on a search warrant later found to be invalid or on a statute later declared unconstitutional. Although his motivation for opening Cox's Buckle bag may have been benign, the fact remains that he violated Cox's constitutional rights by searching her bag without a warrant and without her consent. "This case presents a situation where the exclusionary rule should be applied in order to deter [the trooper] and other law enforcement officers from making the same type of mistake in the future." Pierron, J. dissents, and would find the search was reasonable.

City of Los Angeles, California v. Patel, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 13–1175, filed 06/22/15). Los Angeles requires hotel operators to record and keep specific information about their guests on the premises for a 90-day period. These records “shall be made available to any officer of the Los Angeles Police Department for inspection . . . at a time and in a manner that minimizes any interference with the operation of the business,” §41.49(3)(a), and a hotel operator’s failure to make the records available is a criminal misdemeanor, §11.00(m). Respondents, a group of motel operators and a lodging association, brought a facial challenge to §41.49(3)(a) on Fourth Amendment grounds. The District Court entered judgment for the City, finding that respondents lacked a reasonable expectation of privacy in their records. The Ninth Circuit subsequently reversed, determining that inspections are Fourth Amendment searches and that such searches are unreasonable under the Fourth Amendment because hotel owners are subjected to punishment for failure to turn over their records without first being afforded the opportunity for precompliance review. The Supreme Court, in a 5-4 decision, agreed with the Ninth Circuit. It held the ordinance is facially unconstitutional because it fails to provide hotel operators with an opportunity for precompliance review. The holding does not call into question those parts of the ordinance requiring hotel operators to keep records, nor does it prevent police from obtaining access to those records where a hotel operator consents to the search, where the officer has a proper administrative warrant, or where some other exception to the warrant requirement applies.

Kingsley v. Hendrickson, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 14–6368, filed 06/22/15). Kingsley was awaiting trial in county jail. Officers forcibly removed him from his cell when he refused to comply with their instructions. Kingsley filed an excessive force complaint against two of the officers. The District Court instructed the jury that Kingsley was required to prove, inter alia, that the officers “recklessly disregarded [Kingsley’s] safety” and “acted with reckless disregard of [his] rights.” The jury found in the officers’ favor. Kingsley appealed. The Seventh Circuit held the law required a subjective inquiry into the officers’ state of mind, i.e., whether the officers actually intended to violate, or recklessly disregarded, Kingsley’s rights. The United States Supreme Court reversed. Under 42 U. S. C. §1983, a pretrial detainee must show only that the force purposely or knowingly used against him was objectively unreasonable to prevail on an excessive force claim. The determination must be made from the perspective of a reasonable officer on the scene, including what the officer knew at the time, see Graham v. Connor, 490 U. S. 386, and must account for the “legitimate interests [stemming from the government’s] need to manage the facility in which the individual is detained,” appropriately deferring to “policies and practices that in th[e] judgment” of jail officials “are needed to preserve internal order and discipline and to maintain institutional security,” Bell v. Wolfish, 441 U. S. 520, 540, 547. Pp. 5–7.

City of Atwood v. Pianalto, ___ Kan. ___, ___ P.3d ___ (No. 109796, filed 05/22/15). An officer stopped Pianalto for speeding and found he was intoxicated. The reason for the stop was speeding, but the speed limit sign where the stop occurred had been knocked down. Pianalto contended the speed limit increased as a matter of law on the seemingly unposted roadway, so the officer had no basis to pull Pianalto over for speeding. The Court rejected his argument and affirmed the conviction.

American Civil Liberties Union v. Clapper, ___ F.3d ___ (2nd Cir. No. 14-42, filed 05/07/15). Bulk telephone metadata collection by the NSA is illegal. Section 215 of the Patriot Act (50 U.S.C. § 1861) does not authorize indiscriminate data collection, but the Court does not rule on the constitutional arguments.

State v. James, ___ Kan. ___, ___ P.3d ___ (No. 106083, filed 05/08/15), reversing 48 Kan. App. 2d 310, 288 P.3d 504 (2012). Searches of cell phones incident to arrest are unconstitutional. Police stopped James for having a headlight out, and smelled the odor of alcohol coming from James. The officer went to speak to the passenger and saw an open container of alcohol behind the driver's seat. The officer then placed James in handcuffs and gave him Miranda warnings. James admitted there were cups containing alcohol in the console, and admitted to drinking while driving. The officer then searched the vehicle and found marijuana and scales in the glovebox. James claimed that his brother had left the marijuana in the vehicle, and urged the officer to call his brother, thrusting his hip forward so the officer could reach in James's pocket and get his cell phone. The officer asked if there were any text messages related to drug sales on the phone, and James said no. The officer looked at the text messages and saw two recent messages, one saying, "U got green I will meet U somewhere," and another saying,"Hey T-Ray this is Cotie. U got a 20?" James claimed the search for texts was unconstitutional. The Court of Appeals rejected the argument, finding it was a valid search incident to a lawful arrest. The Supreme Court reversed, holding that Riley prohibits searches of cell phones incident to arrest, and there was no voluntary consent where the defendant was under arrest, had been read his Miranda rights, and was handcuffed and flanked by two armed officers. The Court also held that when a statute, such as K.S.A. 22-2501, affords citizens of Kansas greater protections against searches and seizures than the Fourth Amendment to the United States Constitution, the statute governs the permissible scope of state action. When such statutes are either silent or merely codify the federal constitutional standard, however, it is proper for courts to determine the permissibility of state action as a matter of constitutional law. The contrary holding of State v. Julian, 300 Kan. 690, 700-01, 333 P.3d 172 (2014), is overruled.

United States v. Davis, ___ F.3d ___ (11th Cir. No. 12-12928, filed 05/05/15). Davis committed seven separate armed robberies in a two-month period. The government introduced telephone records (historical location records) obtained from MetroPCS for the time period of the robberies, which generally showed Davis in the vicinity at the time of the robberies. Production was pursuant to a court order that clearly-delineated records that were both historical and tailored to the crimes under investigation. Davis contended that location information should be suppressed because the 18 U.S.C. § 2703(d) production of MetroPCS’s records constituted a search under the Fourth Amendment and thus required probable cause and a search warrant. The 11th Circuit disagreed. It said Davis cannot assert ownership or possession of the third-party’s business records he sought to suppress, and had no subjective or objective reasonable expectation of privacy in MetroPCS’s business records showing the cell tower locations that wirelessly connected his calls at or near the time of six of the seven robberies. Even if he had a subjective expectation of privacy, his expectation of privacy, viewed objectively, is not justifiable or reasonable under the particular circumstances of this case.

State v. Mullen, ___ Kan.App.2d ___, ___ P.3d ____ (No. 110468, filed 05/01/15). A United States Postal Inspector in Kansas City, Missouri, noticed a suspicious package. The inspector contacted the Shawnee Police Department and informed the police he had a suspected drug package addressed to a house on Meadowsweet Lane, Shawnee, Kansas, for delivery that a police K-9 unit had hit on. A detective obtained an anticipatory search warrant for the house on Meadowsweet Lane from a magistrate judge. The anticipatory search warrant required a controlled delivery of the suspected drug package to the house before it granted authority to enter the house. Once the package was delivered, officers entered, and Mullen, post-Miranda, admitted he knew it contained marijuana (2 pounds). Mullen was supposed to receive the package, not open it, then give it to someone else. Mullen argued a controlled delivery required a hand-to-hand delivery between the inspector and Mullen, and not the inspector leaving the package on the steps for someone to retrieve it later. The Court of Appeals disagreed, holding the triggering event for the anticipatory warrant had occurred. And, although Mullen agreed to a bench trial on stipulated facts, and the stipulation contained a waiver of jury trial, the district court failed to personally advise Mullen of his right to a jury trial, and Mullen did not personally waive his right to a jury trial on the record. Since the record is silent on both points, the court reversed his conviction for possession of marijuana with intent to distribute and remand the case for further proceedings for the district court to explain on the record to Mullen his right to a

jury trial.

Rodriguez v. United States, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 13-9972, filed 04/21/15). Following the end of a normal traffic stop and a driver’s refusal to consent (and without reasonable suspicion of a second crime) a vehicle can not be held for a few extra minutes to allow for a dog sniff. The 8th Circuit Court of Appeals held that a few minutes is not unreasonable and that any extra intrusion into an already-detained driver’s time is de minimus. The Supreme Court reversed in a 6-3 ruling, holding that a police stop exceeding the time needed to handle the matter for which the stop was made violates the Constitution’s shield against unreasonable seizures. The sniff in this case occurred seven or eight minutes after the officer issued written warning for the traffic infraction (driving on the shoulder) that justified the stop. The overall stop lasted about 29 minutes. Thomas dissented, reasoning that officer efficiency should not be the defining characteristic of a reasonable duration for a seizure. He noted that if a driver "is stopped by a particularly efficient officer, then he will be entitled to be released from the traffic stop after a shorter period of time than a driver stopped by a less efficient officer. Similarly, if a driver is stopped by an officer with access to technology that can shorten a records check, then he will be entitled to be released from the stop after a shorter period of time than an individual stopped by an officer without access to such technology." He was unwilling to accept that Fourth Amendment protections "are so variable and can be made to turn upon such trivialities.” Thomas, J., dissenting.

State v. Overman, ___ Kan. ___, ___ P.3d ___ (No. 105504, filed 04/17/15). Baxter Spring officers stopped Overman's car because they knew he had a suspended driver's license and past narcotic history. During a pat-down, they found coffee filters on Overman, and a search of the car incident to arrest yielded evidence of manufacturing methamphetamine. A passenger told officers that Overman was a meth cook and there may be syringes and other paraphernalia in the car. Officers searched the car and found indicia of drug activity, then obtained a warrant for the car and seized the drug items from it. Overman claimed that the evidence should be suppressed because the warrantless vehicle search tainted the subsequent warrant and its execution. The Kansas Supreme Court disagreed, finding there was probable cause and therefore the automobile exception applied. It cited the following facts as supporting probable cause: (a) the passenger telling police that syringes with meth residue would be in the car; (b) Overman had admitted ownership of the marijuana and admitted that the pouch in which it was found probably fell off of his lap as he exited the vehicle, i.e., there had been drugs in the vehicle before the stop; and (c) the coffee filters found on Overman's person were unusual items for a person's pocket, but commonly known to be used in the manufacturing of methamphetamine. But cf. State v. Fisher, 283 Kan. 272, 305, 154 P.3d 455 (2007) (discussing legitimate uses for ether). "In short, when the totality of the officers' information is assessed through the lens of a trained law enforcement officer, that evidence supported probable cause to believe that Overman's vehicle contained contraband."

United States v. Huff, ___ F.3d ___ (10th Cir. No. 13-3216, filed 04/14/15). Dana Huff was stopped by Kansas City police in June 2011 for a minor traffic violation. When officers approached, they found a handgun underneath the driver’s seat of Huff’s Isuzu Rodeo and a rifle sitting near a passenger in the vehicle. Huff and the passenger were arrested and Huff was indicted on one count of being a felon in possession of a firearm and one count of possession of an unregistered short-barreled rifle. Huff sought to suppress evidence of the two firearms, arguing the officers lacked reasonable suspicion of criminal activity when searching his vehicle, and that he was unlawfully arrested without a warrant or probable cause to believe he had committed a crime. The district court initially granted Huff's motion, but two days later prosecutors filed a motion to reconsider, claiming Huff had violated an ordinance on transporting loaded firearms which are not in a gun container. The District Court reconsidered and allowed use of the evidence. Huff appealed after conviction and the 10th Circuit affirmed. The judges ruled that while the arresting officers may not have known which ordinance Huff would be charged with violating, the search of his vehicle was still justified. “Upon seeing the uncased weapon, the officers had the requisite probable cause both to conduct a search of the vehicle and to initiate an arrest based upon this weapons violation.” “Whether or not the officers actually had the ordinance in mind when conducting the search or making the arrest makes no difference in this analysis.”

State v. Chapman, ___ Kan.App.2d ___, ___ P.3d ____ (No. 111131, filed 04/10/15). Wichita officers conducted a traffic stop and found several stolen documents in a car. The driver, who had several warrants and wanted to avoid arrest, if possible, named his source for the stolen documents - Mr. Chapman. Officers went to Chapman's house and asked for consent to search. Chapman denied consent. Officers then discovered Chapman was on parole and contacted his parole officer, who told Chapman that due to a recent change in the law, he had to let officers search his house on reasonable suspicion. Officers searched Chapman's house and found indicia of false identification documents and check forging. The day after his arrest, Chapman's parole officer had Chapman sign a document with new conditions of parole, one of which was a consent to search upon reasonable suspicion. Chapman filed a motion to suppress all evidence seized during the search of his house contending that consent was coerced. The State filed a response arguing that the search was authorized by K.S.A. 2012 Supp. 22-3717(k)(3). The Court of Appeals held the search was invalid. It was undisputed that Chapman was not informed of the new conditions of his parole imposed by K.S.A. 2012 Supp. 22-3717(k)(3) until police officers were at his house waiting to search. And while Chapman's PO told him over the telephone of the new conditions of his parole, he did not agree in writing to be subject to a search by law enforcement officers based on reasonable suspicion until the day following the search. K.S.A. 2012 Supp. 22-3717(k)(3) provides that a parolee "shall agree in writing" to be subject to search or seizure by law enforcement officers based on reasonable suspicion. Based on the plain and unambiguous language of the statute, the court held that a parolee's written agreement is, in fact, a condition for a law enforcement officer's search of a parolee's home based on reasonable suspicion. If a parolee's written agreement is not required before law enforcement may conduct a search of a parolee pursuant to K.S.A. 2012 Supp. 22-3717(k)(3), this language would be rendered meaningless. Additionally, the State failed to meet its burden to show that Chapman's consent to the search was unequivocal, specific, and freely given without duress or coercion, express or implied.

Grady v. North Carolina, 575 U. S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 14–593, filed 03/30/15). Petitioner Torrey Dale Grady was convicted in North Carolina trial courts of a second degree sexual offense in 1997 and of taking indecent liberties with a child in 2006. After serving his sentence for the latter crime, Grady was ordered to appear in New Hanover County Superior Court for a hearing to determine whether he should be subjected to satellite-based monitoring (SBM) as a recidivist sex offender. See N. C. Gen. Stat. Ann. §§14–208.40(a)(1), 14–208.40B (2013). Grady did not dispute that his prior convictions rendered him a recidivist under the relevant North Carolina statutes. He argued, however, that the monitoring program—under which he would be forced to wear tracking devices at all times—would violate his Fourth Amendment right to be free from unreasonable searches and seizures. North Carolina courts rejected Grady's arguments. The United States Supreme Court reversed, holding the North Carolina courts must examine whether the State’s monitoring program is reasonable—when properly viewed as a search, which the Supreme Court will not do so in the first instance.

State v. Meitler, ___ Kan.App.2d ___, ___ P.3d ____ (No. 111697, filed 03/27/15, pet. for review filed 04/15/15). Meitler killed another driver after crossing the centerline. Officers had his blood drawn while he was unconscious, and it tested positive for methamphetamine and marijuana.. Meitler moved to suppress the test results based on State v. Declerck, 49 Kan. App. 2d 908, 317 P.3d 794, rev. denied 299 Kan. __ (June 20, 2014), which found that K.S.A. 2011 Supp. 8-1001(b)(2) is unconstitutional. The district court suppressed the evidence from Meitler's blood draw, ruling that Declerck applied to this case, and the good-faith exception to the exclusionary rule did not apply. The Court of Appeals reversed on the good faith issue. The Court held it is applicable to the facts and suppression would serve no valid purpose because the exclusionary rule was aimed at deterring police misconduct, not legislator misconduct. Atchison, J., dissents, stating, "the statute, thus, represents the rare enactment so dramatically at odds with proper legislative purpose and function that the exclusionary rule should be applied regardless of a government agent's good-faith reliance on it. See Illinois v. Krull, 480 U.S. 340, 355, 107 S. Ct. 1160, 94 L. Ed. 2d 364 (1987).

State v. Talkington, ___ Kan. ___, ___ P.3d ___ (No. 107596, filed 03/06/15). Emporia officers went to a residence to locate a subject named in a warrant. Two men, Garrison and Talkington were walking dogs on leashes when officers approached. The men dropped the leashes and ran to the back yard of the home. Garrison owned the home, and Talkington was a social guest. One of the officers went into the backyard, presumably looking for the person named in the warrant, and found a baggie of methamphetamine about 3 to 5 feet from the back door of the residence and 20 yards from the property line. Both men were arrested, and both had other drugs on their person. The district court suppressed the evidence, holding the state failed to prove an applicable exception to the warrant requirement. The Court of Appeals reversed. The Supreme Court reversed the Court of Appeals and affirmed the trial court, finding no applicable exception. After Florida v. Jardines, 569 U.S. __ 133 S. Ct. 1409, 1417, 185 L. Ed. 2d 495 (2013), a search occurs under the Fourth Amendment to the United States Constitution when: (1) the government obtains information by physically intruding on a constitutionally protected area, i.e., persons, houses, papers, or effects; or (2) invades a subjective expectation of privacy that society recognizes as reasonable. While the lack of a privacy fence weighs somewhat in favor of the State, the no trespassing and no solicitation signs, the lack of a path leading to the backyard, the inability to see the area from a public vantage point coupled with the attempt to conceal the baggie, and the partial enclosure all weigh in favor of the district court's finding of curtilage.

ADA

City and County of San Francisco v. Sheehan; ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 13-1412, 05/18/15). Two officers and their employer were sued in federal court by a mentally ill person whom the officers had earlier shot during a confrontation at a facility when the person charged the officers with a knife while screaming that she was going to kill them. The question whether 42 U.S.C. §12132 “requires law enforcement officers to provide accommodations to an armed, violent, and mentally ill suspect in the course of bringing the suspect into custody,” is dismissed as improvidently granted. Certiorari was granted on the understanding that San Francisco would argue that Title II of the ADA does not apply when an officer faces an armed and dangerous individual. Instead, San Francisco merely argues that Sheehan was not “qualified” for an accommodation, §12132, because she “pose[d] a direct threat to the health or safety of others,” which threat could not “be eliminated by a modification of policies, practices or procedures, or by the provision of auxiliary aids or services,” 28 CFR §§35.139(a), 35.104. This argument was not passed on by the court below. The decision to dismiss this question as improvidently granted, moreover, is reinforced by the parties’ failure to address the related question whether a public entity can be vicariously liable for damages under Title II for an arrest made by its police officers. On the Fourth Amendment issue, the officers are entitled to qualified immunity from liability for the injuries suffered by Sheehan. There is no doubt that officers could have opened her door the second time without violating her rights had Sheehan not been disabled. Their use of force was also reasonable. The only question therefore is whether they violated the Fourth Amendment when they decided to reopen Sheehan’s door rather than attempt to accommodate her disability. Because any such Fourth Amendment right, even assuming it exists, was not clearly established, the officers are entitled to qualified immunity. Likewise, an alleged failure on the part of the officers to follow their training does not itself negate qualified immunity where it would otherwise be warranted.

Civil and Criminal Liability

The Heirs of Freddie Gray v. City of Baltimore, court and case no. unknown, published in the USA Today on 9/8/15. The city of Baltimore has reached a $6.4 million settlement in a lawsuit filed by the family of Freddie Gray, the 25-year-old man black man who died in April after suffering a neck injury while in police custody, multiple media outlets were reporting Tuesday. The settlement is expected to be approved Wednesday at a meeting of the city's Board of Estimates, which oversees city spending, The Baltimore Sun reported. Last week a judge ruled that the six police officers charged in the connection with Gray's death can be tried separately. The six officers have pleaded not guilty to charges ranging from false imprisonment to involuntary manslaughter. Gray died of a severe neck injury after being handcuffed and restrained inside the police vehicle April 12. Gray's death triggered widespread protests, accompanied by looting and arson in Baltimore, and prompted a national outcry.

Apodaca v. Willmore, ___ Kan.App.2d ___, ___ P.3d ____ (No. 111987, 05/15/15, pet. for review filed 6/15/15). The Kansas Court of Appeals, as a matter of first impression, held the "firefighter's rule" applied to law enforcement officers, barring their negligence claims from injuries suffered while responding to emergencies in their official capacity. At 3:30 a.m., Mathew Willmore fell asleep while driving his F-150 pickup northbound on K-177, and rolled the truck across the median where it became disabled in the southbound lane of traffic. Officer Juan Apodaca responded to a dispatch call about the accident. As Officer Apodaca approached the scene at a high rate of speed, he observed a vehicle in the northbound lane with headlights and emergency flashers illuminated, approximately one mile away. Although Office Apodaca believed the illuminated vehicle was Willmore's, it was actually a witness's vehicle. Officer Apodaco did not see Willmore's disabled vehicle in the southbound lane of traffic, and subsequently collided with the vehicle at 104 miles per hour. When test results showed Willmore had a blood alcohol level of .103, Officer Apodaca sued Willmore for negligence. Willmore successfully moved for summary judgment under the "firefighter's rule," and Apodaca appealed to the Kansas Court of Appeals. On review, the Court of Appeals explained that under the rule adopted in Calvert v. Garvey Elevators, Inc., 236 Kan. 570, 694 P.2d 433 (1985), a firefighter generally cannot recover for injuries caused by the wrong that initially necessitated his or her presence at the scene of an emergency. Although the court recognized it had not previously decided whether the "firefighter's rule" also applied to law enforcement officers, it explained the general rationale behind the rule was that the general public should not be discouraged from calling emergency personnel because of a fear of incurring liability. The court concluded this same rationale should apply to law enforcement officers, supported by other jurisdictions' rulings on the issue. The court held that Apodaca's claims were barred by the firefighter's rule, and affirmed summary judgment in favor of Willmore.

Melendres v. Arpaio, ___ F.3d ___ (9th Cir. No. 13-16285, filed 04/15/15). In an civil rights action against Sheriff Joseph Arpaio and the Maricopa County Sheriff's Office, alleging that defendants have a custom, policy and practice of racially profiling Latino drivers and passengers, and of stopping them pretextually under the auspices of enforcing federal and state immigration-related laws, the district court's judgment is affirmed in part and vacated in part where: 1) the Maricopa County Sheriff's Office improperly was named as a party in the action; 2) the court did not clearly err in finding that a) defendant's unconstitutional policies extended beyond the saturation patrol context, and b) the named plaintiffs had standing to assert the claims of absent class members who were stopped during non-saturation patrols; 3) the injunction was not overbroad simply because it included non-saturation patrols; and 4) the provisions of the injunction which broadly require the appointed Monitor to consider the internal investigations and reports of officer misconduct created a problem to the extent that such investigations and reports were unrelated to the constitutional violations found by the district court

Quinn v. Young, ___ F.3d ___ (10th Cir. No. 13-2074, filed 03/13/15). The Tenth Circuit held that officers were entitled to qualified immunity and remanded the case for entry of judgment. An Albuquerque Sgt. developed an undercover "sting" operation. During one such sting, officers placed a backpack containing beer, cigarettes, and a laptop near a public ATM and observed two adults pick up the backpack and walk to a nearby diner. As they inspected the backpack's contents, officers confronted and arrested the adults for larceny, although the charges were later dropped. The arrestees filed suit under 42 U.S.C. § 1983, alleging violation of their Fourth Amendment rights. The district court denied the defendants' motion for summary judgment on qualified immunity grounds, finding there were fact issues as to whether the officers had probable cause to arrest, and that case law on the issue would have put a reasonable officer on notice that he or she could not make a lawful arrest for larceny unless there was probable cause to suspect the arrestee intended to permanently deprive the owner of his or her property. The Tenth Circuit focused on whether clearly established case law would have placed similarly-situated officers on notice that they had no probable cause to arrest in a larceny sting operation. The court was careful to make clear that sting operations present a unique situation because unlike a typical larceny investigation, in a sting the officers possess additional knowledge about the origin and ownership of the property at issue, which are both relevant to mens rea. The Tenth Circuit concluded that the general larceny cases relied on by the district court was inapplicable to sting operations and that the plaintiffs failed to identify any on-point case law capable of putting the officers on notice that their conduct was unconstitutional.

Constitutional Law

Johnson v. United States, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 13-7120, filed 06/26/15). Johnson's enhanced sentence under the Armed Career Criminal Act for having been thrice convicted of crimes involving "a serious potential risk of physical injury to another," violates the due process clause. In this case, the serious risk of violence was attached to the possession of a sawed-off shot gun. Samuel Johnson, an unsympathetic white supremacist from Minnessota, plead guilty to being a felon in possession of a firearm. The government sought an ACCA enhancement, based on his three previous strikes, one of which was a conviction for possessing a sawed-off shot gun. Circuits were split on whether possession of a sawed-off shot gun was a violent crime under the ACCA, and the Supreme Court was originally supposed to decide this issue. After oral arguments, however, the Court called the parties back to argue the constitutional question -- whether the ACCA's residual clause was so vague that it violated due process. Two features of the residual clause conspire to make it unconstitutionally vague. By tying the judicial assessment of risk to a judicially imagined “ordinary case” of a crime rather than to real-world facts or statutory elements, the clause leaves grave uncertainty about how to estimate the risk posed by a crime. At the same time, the residual clause leaves uncertainty about how much risk it takes for a crime to qualify as a violent felony. Taken together, these uncertainties produce more unpredictability and arbitrariness than the Due Process Clause tolerates. This Court’s repeated failure to craft a principled standard out of the residual clause and the lower courts’ persistent inability to apply the clause in a consistent way confirm its hopeless indeterminacy.

DL Suspension

Dumler v. Kansas Dept. of Revenue, ___ Kan. ___, ___ P.3d ___ (No. 106748, filed 07/24/15). An officer arrested Dumler for DUI and requested a breath test. Dumler requested several times before the breath test that he be permitted to confer with an attorney, with the last request coming after the oral and written implied consent Under Kansas' Implied Consent Law. The officer never gave Dumler an opportunity to confer with an attorney, and Dumler did not repeat his request for an attorney or request additional testing after his breath test failure. The officer placed Dumler in a holding cell, where he remained for an hour or so before posting bond and being released. Denial of an attorney is a proper subject for an administrative hearing because while 8-1020(h) limits the issues to whether "the test result determined that the person had an alcohol concentration of .08 or greater in such person's breath," a driver must be permitted the opportunity of challenging the efficacy of the State's evidence on this issue. The bright-line test of State v. Tedder, 38 Kan. App. 2d 141, 142-43, 163 P.3d 311 (2007) that the request to consult with an attorney must come after completion of testing is not supported by the language of the statute and Tedder is overruled. A person has no right to consult with counsel before deciding whether to take the requested alcohol testing, but after the test, a person has the unrestricted right to consult with an attorney, period. Denial of that right will result in suppression of the breath test.

DUI

City of Overland Park v. Lull, ___ Kan.App.2d ___, ___ P.3d ____ (No. 111741, filed 03/13/15). Lull, a second DUI offender, at about 4:15 p.m. one day failed to yield right of way on a left turn and hit a mail truck, flipping it on its side at 79th & Metcalf. He showed signs of intoxication, but refused the PBT and the breath test because his lawyer told him to never take them. His refusal was admitted in his criminal trial despite the fact that Officer Morse failed to read paragraph 7 of the ICA. The Court of Appeals reversed the district court's refusal to suppress Lull's refusal, and held the refusal should have been suppressed because there was no substantial compliance with K.S.A. 8-1001, et seq.

Jurisdiction

State v. Vrabel, ___ Kan. ___, ___ P.3d ___ (No. 108390, filed 04/24/15), affirming___ Kan.App.2d ___, ___ P.3d ____ (No. 108390, filed 06/14/14/13). A confidential informant (CI) advised Corporal Washington of the Prairie Village Police Department (PVPD) that Vrabel was selling hash. Cpl.Washington had the CI arrange to purchase hash from Vrabel at a grocery store in Leawood. Cpl. Washington did not know where Vrabel was when he spoke to the CI on the phone. The grocery store was selected because it was located on a main road into Missouri, where Vrabel lived, and was one of law enforcement's traditional buy locations. PV coordinated the buy with Leawood Lieutenant Kevin Cauley, but the opinion isn't clear on whether Cauley requested PV's assistance. Vrabel sold hash to the CI at the grocery store in Leawood. The state charged Vrabel with distribution of marijuana and use of a communication facility to sell a controlled substance. Vrabel filed a motion to suppress, arguing that PVPD unlawfully exercised its jurisdiction by "set[ting] up and investigat[ing] a crime" in Leawood. The district court granted the motion. The State filed an interlocutory appeal. The Court of Appeals reversed, holding that Prairie Village police officers were authorized to conduct a controlled drug buy in Leawood under the "request for assistance" exception in K.S.A. 2012 Supp. 22-2401a(2)(b). It found there was "at least an implied agreement for drug -buy assistance between the PVPD and the LPD." Malone, J., concurred, disagreeing that the "request for assistance" exception applied, but finding no violation of Vrabel's constitutional rights. The Supreme Court affirmed the Court of Appeals decision, but agreed with Judge Malone's rationale. It determined that PVPD exceeded its statutory jurisdictional authority when it arranged for a controlled drug buy in Leawood, but held that, under the facts of this case, suppression of the drugs, audio recording, and surveillance photographs was not the appropriate remedy for PVPD's statutory violation. "But before concluding, a word of caution might be in order. Like our sister State to the West: "'[T]his court cannot sanction willful and recurrent violations of the law' and . . . future violations 'may trigger application of the [exclusionary] rule.'" People v. Martinez, 898 P.2d 28, 33 (Colo. 1995) (quoting People v. Wolf, 635 P.2d 213, 217 [Colo. 1981])."

Jury Instructions

State v. Berney, ___ Kan.App.2d ___, ___ P.3d ____ (No. 111407, filed 07/10/15). Jeramie Berney was convicted of felony theft of a tip jar. On appeal, he challenges the district court's failure to give the jury a limiting instruction after a detective testified that he had found Berney's photo in the "mug system" when creating a lineup—suggesting to jurors that Berney had prior arrests or convictions. The district court's failure to give a limiting instruction that evidence of where the detective got Berney's photo could not be considered in deciding guilt in this case was clear error because no strong evidence was offered at trial. After carefully reviewing the full trial transcript, we conclude that a new trial must be ordered because the jury would have reached a different verdict had the instruction error not occurred.

Elonis v. United States, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 13-983, filed 06/01/15). Elonis, a Pennsylvania resident, was imprisoned for what he wrote on Facebook. He adopted the rap persona Tone Dougie, and made posts that were punctuated by brutally violent language, most of it directed against his estranged wife. He wrote that he would like to see a Halloween costume that included his wife’s “head on a stick.” He talked about “making a name for myself” with a school shooting, saying, “Hell hath no fury like a crazy man in a kindergarten class.” He fantasized about killing an FBI agent. He also said such nice things as, “There’s one way to love you but a thousand ways to kill you;" "I’m not going to rest until your body is a mess, soaked in blood and dying from all the little cuts," and "Fold up your PFA and put it in your pocket. Is it thick enough to stop a bullet?" He was charged with five counts of violating 18 U. S. C. §875(c), which makes it a federal crime to transmit in interstate commerce “any communication containing any threat . . . to injure the person of another.” At trial, Elonis requested a jury instruction that the Government was required to prove that he intended to communicate a “true threat.” Instead, the District Court told the jury that Elonis could be found guilty if a reasonable person would foresee that his statements would be interpreted as a threat. The Third Circuit’s instruction, requiring only negligence with respect to the communication of a threat, is not sufficient to support a conviction under Section 875(c). The instructions were defective because they required only negligence in conveying a threat. The Court did not answer what type of intent was necessary, merely stating "we read into the statute “only that mens rea which is necessary to separate wrongful conduct from ‘otherwise innocent conduct.’” There must have been some awareness of some wrongdoing.

Labor

Goldwater Institute v. City of Phoenix, Case No. and court unknown. Profiled in Court Upholds Ban On Phoenix Police Union Work in the Arizona Republic 08/11/15. Judge Katherine Cooper held that a union pay provision in Phoenix's contract was illegal. Phoenix was spending $1.7 million over two years to pay six full-time officers to handle union work and two others to respond to major incidents. The appeals court ruling says there were no specific official duties for the officers when working for union, The state court of appeals upheld the ruling. The Court of Appeals ruling agreed with a Maricopa County Superior Court judge’s finding that the practice used by the city of Phoenix in its contract with the Phoenix Law Enforcement Association violates the state constitution’s gift clause because it doesn’t benefit the public.

Legislation

President Obama has signed (05/20/15) into law a measure that will require instant nationwide "Blue Alerts" to warn about threats to police officers and help track down the suspects who carry them out, reports USA Today. The Rafael Ramos and Wenjian Liu National Blue Alert Act of 2015 is named for the two New York Police Department officers killed in an ambush attack last December. The law requires the Justice Department to create a notification system relating to assaults on police officers, officers who are missing in the line of duty, and credible treats against law enforcement. The system is modeled after Amber Alerts for abducted children and Silver Alerts for missing seniors. "This was one of our top legislative priorities this session and is a significant development that will help protect the protectors of our communities," said Jon Adler, president of the Federal Law Enforcement Officers Association (FLEOA). "This new system will provide valuable, timely, and location specific information regarding the serious injury and/or line of duty death of a law enforcement officer, while maintaining the anonymity of the law enforcement officer involved."

LPRs

ACLU v. Superior Court of Los Angeles County, ___ Cal.App.2d ___, No. B259352, filed 05/06/15). The County properly denied open records requests for LPR data. Such data fits within the exemption for investigative records and need not be disclosed.

Medical Expenses

Univ. of Kansas Hospital Authority v. Unified Gov't. of Wyandotte County, ___ Kan. ___, ___ P.3d ___ (No. 108391, filed 05/22/15), affirming 49 Kan. App. 2d 449, 313 P.3d 60 (2013, No. 108391, filed 09/13/13). Plaintiffs sued to recover the cost of medical treatment provided to an arrested person. The facts are:

1.On November 5, 2008, Highway Patrol Trooper Greg Peters determined a vehicle was speeding in Wyandotte County and pursued it.

2.The driver of the speeding vehicle, Wayne Thomas, eventually crashed.

3.The Trooper arrested and handcuffed Thomas.

4.Trooper Peters drove Thomas to the University of Kansas Hospital, still handcuffed, where nursing personnel advised Peters that Thomas would be admitted.

5.Trooper Peters advised the nurses that Thomas was on a 'police hold'.

6.The next day, hospital personnel advised Peters that Thomas was ready for release.

7.Trooper Peters went to the hospital, handcuffed Thomas and took him to the Wyandotte County jail.

8.Thomas was charged in Wyandotte County District Court with eluding a police officer, a severity level 9, person felony.

9.Mr. Thomas was indigent and had no medical insurance.

10.The reasonable and necessary charges made for his care by plaintiff University of Kansas Hospital Authority totaled $23,197.29.

"11.The reasonable and necessary costs for his care by plaintiff Kansas University Physicians, Inc. totaled $2,311.00."

The district court denied the State's motion for summary judgment and granted summary judgment in favor of KU and against the State. The Supreme Court affirmed based on K.S.A. 22-4612. The statute supersedes the prior policy enunciated in Wesley Med. Center v. City of Wichita, 237 Kan. 807, Syl. ¶¶ 2, 3, 703 P.2d 818 (1985), that a county would be held liable for the medical expenses of all offenders arrested for and subsequently charged with a violation of state law, regardless of which police agency made the arrest or whether such expenses were incurred before or after the offender was placed in the county jail.

Miscellaneous

Henderson v. United States, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 13-1487, filed 05/18/15). A court-ordered transfer of a felon's lawfully owned firearms from Government custody to a third party is not barred by 18 U.S.C. section 922(g) if the court is satisfied that the recipient will not give the felon control over the firearms, so that he could either use them or direct their use. Federal courts have equitable authority to order law enforcement to return property obtained during the course of a criminal proceeding to its rightful owner. Section 922(g), however, bars a court from ordering guns returned to a felon-owner like Henderson, because that would place the owner in violation of the law. The Eleventh Circuit Court of Appeals is reversed.

Day v. Colorado, ___ F.Supp.2d ___ (D. Colo. No. ____, filed ____, profiled in the Topeka Capitol Journal 03/05/15). Ten sheriffs from three different states sued Colorado Thursday for legalizing marijuana. The sheriffs from Colorado, Kansas and Nebraska say that Colorado’s 2012 marijuana legalization vote violates federal law and shouldn’t be permitted. “A state may not establish its own policy that is directly counter to federal policy against trafficking in controlled substance,” the sheriffs argue. The lawsuit is the latest legal challenge to legal weed. Separately, Nebraska and Oklahoma have appealed to the U.S. Supreme Court to strike down marijuana legalization in Colorado. The Supreme Court hasn’t said yet whether it will hear that case. And a group of Colorado citizens have filed their own federal challenge, saying marijuana reduces property values. The sheriffs note that more than half of Colorado’s recreational pot sales last year were sold to out-of-state visitors, according to data from Colorado’s marijuana regulators. The sheriffs say the weed is spilling across state lines. Even in Colorado, the sheriffs say, legal weed forces police officers to violate federal drug law. “The scheme enacted by Colorado for retail marijuana is contrary and obstructive” to federal drug laws, the sheriffs argue. The Colorado plaintiffs are Larimer County Sheriff Justin Smith, Yuma County Sheriff Chad Day, Elbert County Sheriff Shayne Herp, Hinsdale County Sheriff Ronald Bruce, Kiowa County Sheriff Casey Sheridan and Delta County sheriff Frederick McKee. The Nebraska plaintiffs are Deuel County Sheriff Adam Hayward, Deuel County Attorney Paul Shaub, Cheyenne County Sheriff John Jenson and Scotts Bluff County Sheriff Mark Overman. The Kansas plaintiffs are Sherman County Sheriff Burton Pianalto and Charles Moser, attorney for Sherman, Wallace and Greeley counties. Colorado’s attorney general, which will defend the state pot law in all three lawsuits, did not immediately respond to the sheriffs’ filing Thursday.

State v. Evans, ___ Kan. ___, ___ P.3d ___ (No. 111143, filed 02/13/15). Judge Russell dismissed two counts of criminal possession of a firearm and one count of possession of marijuana after a prior conviction filed against Richard Evans, III. The court found Evans' prior guilty pleas to be felonies in Missouri, which resulted in suspended imposition sentences (SIS), were not convictions to serve as predicate convictions under K.S.A. 2013 Supp. 21-6304 or K.S.A. 2013 Supp. 21-5706. The district court on its interpretation of State v. Pollard, 273

Kan. 706, 714, 44 P.3d 1261 (2002). The State appealed. The Court of Appeals reversed. Kansas law controls the determination of what constitutes a conviction for predicate offenses. Kansas statutes clearly define a conviction as including a proceeding where a defendant pleads guilty and is found guilty by a tribunal as a result of the plea, even if a sentence has not yet been imposed.

Self Defense

State v. Knox, ___ Kan. ___, ___ P.3d ___ (No. 104266, filed 04/10/15). Mr. Knox and a couple of his associates shot and killed Lafayette Morris in Wyandotte County. Knox requested a self-defense instruction based on the fact that no witnesses saw the shooting begin; he argued that Morris could have fired the first shot. But the district court denied the request. The Supreme Court affirmed, finding self-defense factually inappropriate. There was no direct or circumstantial evidence suggesting the victime provoked the confrontation. Further, the circumstantial evidence indicates that Knox and the others ambushed the victim and fired the first (and only) shots.

Speedy Trial

State v. Brownlee, ___ Kan. ___, ___ P.3d ___ (No. 110262, filed 08/07/15). Brownlee was arraigned for murder on September 12, 2012. At the time, the speedy trial statute required trial within 90 days for persons in custody. K.S.A. 22-3402(1). The speedy trial statute was amended effective July 1, 2012, 64 days after Browlee's crime, to provide in relevant part: "(g) If a defendant, or defendant's attorney in consultation with the defendant, requests a delay and such delay is granted, the delay shall be charged to the defendant regardless of the reasons for making the request, unless there is prosecutorial misconduct related to such delay. If a delay is initially attributed to the defendant, but is subsequently charged to the state for any reason, such delay shall not be considered against the state under subsections (a), (b) or (c) and shall not be used as a ground for dismissing a case or for reversing a conviction unless not considering such delay would result in a violation of the constitutional right to a speedy trial or there is prosecutorial misconduct related to such delay." (Emphasis added.) K.S.A. 2012 Supp. 22-3402. The facts of this case fall squarely within the circumstances described by the second sentence of subsection (g). The district judge erroneously assessed the time between September 28 and October 26, 2012. We have now concluded the time should have been charged to the State. Brownlee does not assert on appeal that his constitutional right to a speedy trial was violated, and he says only that he "may" claim that prosecutorial misconduct had a role in the delay because the State did not secure his presence without alleging or demonstrating that he or his counsel ever sought to have him brought to court. The only speedy trial violation before us is purely statutory, arising out of application of what was then subsection (1)'s and is now subsection (a)'s 90-day limit. Under subsection (g), the legislature, which created the statutory right, has decided to eliminate the remedy for its violation in certain circumstances, providing explicitly that the violation "shall not be used as a ground for dismissing a case or for reversing [Brownlee's] conviction." K.S.A. 2012 Supp. 22-3402(g). We are compelled by this plain language to affirm the district judge's refusal to dismiss this case on statutory speedy trial grounds.

Use of Force

State v. Hardy, ___ Kan.App.2d ___, ___ P.3d ____ (No. 110982 filed 03/27/15). Hardy shot Flores after Flores allegedly approached Hardy's car and punched Hardy in the face several times. Hardy filed a motion to dismiss alleging self-defense immunity. Rather than conducting a hearing on the motion, the district court reviewed the preliminary hearing transcript and granted the motion. The Court of Appeals reversed. In considering a motion for self-defense immunity under K.S.A. 2014 Supp. 21-5231, a district court must conduct an evidentiary hearing, unless the parties otherwise stipulate to the factual record. The rules of evidence apply. At the hearing, the State has the burden to establish probable cause that the defendant acted without legal justification in using force. The district court must view the evidence in a light favoring the State, meaning conflicts in the evidence must be resolved to the State's benefit and against a finding of immunity.




2014 Case Update List

January 1, 2014 through December 31, 2014 (or thereabouts)

Quick Links to prior year lists.

1st Amendment

Dept. of Homeland Security v. MacClean, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 13-894, filed 01/21/15). MacClean, a former air marshal, was fired after he contacted a reporter and told him about the TSA’s decision to cancel air marshal missions. The DHS argued the MacClean's actions were not entitled to whistle-blower protection because his disclosure was “specifically prohibited by law,” §2302(b)(8)(A)—namely, by 49 U. S. C. §114(r)(1) which gives DHS regulation authority. Regulations do not qualify as “law” under that statute. Congress did not use the phrase “law, rule, or regulation” in the statutory language at issue here; it used the word “law” standing alone. That is significant because Congress generally acts intentionally when it uses particular language in one section of a statute but omits it in another. Russello v. United States, 464 U. S. 16, 23 (1983) . Thus, Congress’s choice to say “specifically prohibited by law” rather than “specifically prohibited by law, rule, or regulation” suggests that Congress meant to exclude rules and regulations.

Holt v. Hobbs, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 13-6827, filed 01/20/15). The Arkansas Department of Correction's grooming policy, which prohibits inmates from growing beards unless they have a particular dermatological condition, violates RLUIPA insofar as it prevents the petitioner from growing a ½ inch beard in accordance with his religious beliefs. Once a burden on religion is shown, the burden shifts to the government to show that substantially burdening the religious exercise of the "particular claimant" is "the least restrictive means of furthering [a] compelling governmental interest." Burwell v. Hobby Lobby Stores, Inc., 573 U. S. ___, ___ (2014); 42 U.S.C. §2000cc-1(a). The Department fails to show that enforcing its beard prohibition against petitioner furthers its compelling interests in preventing prisoners from hiding contraband and disguising their identities.

Cyr v. Addison Rutland Supervisory Union, ___ F.Supp. ___ (D. Vt. 2015). Former Benson, Vermont resident Marcel Cyr settled for$147,500 Monday after winning a lawsuit against the Addison Rutland Supervisory Union. He had been banned from all school grounds in the district because school officials were frightened of him. School officials said they feared for their safety because of Cyr’s physical size, loud voice and sometimes harsh comments he made about the education his son was receiving at Benson Village School. The ACLU took up Cyr’s case on free speech grounds, and in September federal judge J. Garvan Murtha found that Cyr’s rights to free speech had been infringed upon by the school district. In his decision, Judge Murtha wrote that “The ARSU’s categorical ban was not tailored to respond to the specific threat that Mr. Cyr potentially posed, a threat that was never articulated as anything more specific than a potential risk of violence to (the school’s principal and its director of special services) or their staff.”

Watchtower v. City of San Juan, (Watchtower III), ___ F.3d ___ (1st Cir. No. 13-605, 13-1718 & 13-1719, filed 11/20/14). Puerto Rico allows private citizens to maintain gated residential communities that incorporate public streets. The district court solution in this regard was to make municipalities "gather and turn over to the plaintiffs all means of access available to residents of unmanned urbanizations (such as keys, buzzers, or access codes)." The municipalities claimed that the remediation scheme imposed undue administrative burdens on them. The First Circuit did not buy it. The alternative, manning every gate, would have been much costlier. The First Circuit did excise the requirement that, if the communities change their method of entry, they had to provide that new method to the Jehovah's Witnesses within 24 hours. See also Watchtower Bible & Tract Soc'y of N.Y., Inc. v. Sagardía De Jesús (Watchtower I), 634 F.3d 3 (1st Cir.), reh'g denied, 638 F.3d 81 (1st Cir. 2011); Watchtower Bible & Tract Soc'y of N.Y., Inc. v. Colombani (Watchtower II), 712 F.3d 6 (1st Cir. 2013).

Cox v. Denning, ___ F.Supp. 2d ___ (U.S.D.C. Kan. Case no. 12-2571-DJW, filed 09/29/14). In 2009, the Johnson County Adult Detention Center ("Detention Center") implemented a policy of only distributing postcards, privileged mail from attorneys and courts, and pre-approved letters to inmates. Any non-compliant mail was returned to the sender, with a subsequent notice delivered to the inmate. When Nicholas Cox, an inmate, was notified he received four letters that had been returned to their senders at unidentified return addresses, he filed suit for violation of his First Amendments rights. On Cox's motion for summary judgment, the court, citing Turner v. Safley, 482 U.S. 78 (1987), identified the following four factors as controlling: (1) Whether a valid and rational connection exists between the regulation and asserted governmental interest; (2) whether there are alternative means for the inmate to exercise his or her constitutional rights; (3) any effect accommodating the right would have on guards and inmates; and (4) the absence of ready alternatives. The Detention Center claimed its mail policy was rationally related to security and efficiency. The court was unconvinced, however, because the Detention Center failed to present a credible explanation for why a postcard-only policy was more effective at preventing contraband from being introduced than opening letters and inspecting them would be. The court was also skeptical of the Detention Center's efficiency argument because it believed any time saved by not opening envelopes was instead spent returning mail and providing notices to prisoners. Ultimately the court concluded that the Detention Center's mail policy did not support legitimate penological objectives, and it granted Cox summary judgment on his First Amendment claim.

Harris v. Quinn, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 11-681, filed 06/30/14). The Court held, in a 5-4 decision, that unions cannot require home health care workers to pay "fair share fees" to support the union. States cannot compel personal care providers to subsidize speech on matters of public concern by a union that they do not wish to join or support.

McCullen v. Coakley, 568 U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 12-1168, filed 06/26/14.). The Court struck down a Massachusetts law that creates a 35-foot "buffer zone" around reproductive healthcare facilities into which demonstrators are not allowed to enter. A 2008 case, Hill v. Colorado, upheld a similar law against a First Amendment challenge because it (1) addressed a legitimate state concern for the safety and privacy of individuals using the facilities, (2) was "content-neutral" in that it applied to all demonstrators equally regardless of viewpoint, and (3) regulated the "time, place, and manner" of speech without foreclosing or unduly burdening the right of demonstrators to communicate their message. Not so much with the Massachusetts law. The facts indicated most of the problems occurred on Saturdays, and a 7-day per week 35 foot blanket prohibition was not narrowly tailored enough. To meet the narrow tailoring requirement the government must demonstrate that alternative measures that burden substantially less speech would fail to achieve the government’s interests, not simply that the chosen route is easier. The government failed to meet it's burden, and the court held the buffer zone "burden[s] substantially more speech than is necessary to further the government’s legitimate interests."

Town of Greece, New York v. Galloway, 568 U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 12-696, filed 05/05/14). Under the 1983 case Marsh v. Chambers, the Court held that a state legislature could hire a chaplain to deliver a prayer at the beginning of its sessions as long as the practice was not "exploited to proselytize or advance any one, or to disparage any other, faith or belief." The town of Greece’s official policy allows any person of any or no denomination to deliver an invocation at the beginning of town board meetings, and the town does not approve or even examine the prayer in advance. In practice, all but four invocations (two Jewish, one Baha’I, and one Wiccan) have been led by Christians. In a 5-4 decision, the Court held Defendant-town's practice of beginning the monthly town board meetings with a prayer given by clergy selected from the congregations listed in a local directory does not violate the First Amendment's Establishment Clause, where: 1) legislative prayer is not required to be nonsectarian; 2) absent a pattern of prayers that over time denigrate, proselytize, or betray an impermissible government purpose, a challenge based solely on the content of a particular prayer will not likely establish a constitutional violation; and 3) so long as the town maintains a policy of nondiscrimination, the Constitution does not require it to search beyond its borders for non-Christian prayer givers in an effort to achieve religious balancing.

Case Name Unknown - City of Indianapolis - profiled on PoliceOne.com on 03/01/14. The terms of a recently settled lawsuit in Indianapolis, Indiana will require the city's police force to remind officers that it's legal for civilians to videotape on-duty cops, but it will also cost the department more than just that. In addition to having to adopt an official policy recognizing the right for citizens to record law enforcement officials, the City of Indianapolis is also cutting a $200,000 check for a local man who was arrested and injured by police in 2011 after he refused to stop filming a nearby arrest. According to excerpts of the policy published on Thursday by WISH-TV, local law enforcement officials have 60 days to adopt a policy that states “police officers should not interfere with civilians who are observing or recording their actions by video or audio in public, so long as the civilians maintain a safe and reasonable distance if necessary from the scene of a police action, do not physically interfere with the officers’ performance of their duty and do not represent a physical danger to the officers, civilians or others.”

2nd Amendment

Kolbe v. O’Malley, ___ F.Supp. ___ (U.S.D.C. D.C. No. 1:13-cv-02841, filed ____). In what looks to be a terrible ruling for Maryland gun owners a federal judge has essentially ruled that guns that were regulated by the state of Maryland last year, including AR-15 and AK style rifles (as well as other magazine fed, semi-auto rifles with certain features), “fall outside Second Amendment protection as dangerous and unusual arms,” according to a 47 page opinion by U.S. District Judge Catherine C. Blake. Numerous plaintiffs including the Associated Gun Clubs of Baltimore, Maryland Licensed Firearms Dealers Association, Maryland State Rifle and Pistol Association, and the National Shooting Sports Foundation (NSSF), among others which challenged the constitutionality of Maryland’s strict new gun laws. Blake stated:

Upon review of all the parties’ evidence, the court seriously doubts that the banned assault long guns are commonly possessed for lawful purposes, particularly self-defense in the home, which is at the core of the Second Amendment right, and is inclined to find the weapons fall outside Second Amendment protection as dangerous and unusual.

First, the court is not persuaded that assault weapons are commonly possessed based on the absolute number of those weapons owned by the public. Even accepting that there are 8.2 million assault weapons in the civilian gun stock, as the plaintiffs claim, assault weapons represent no more than 3% of the current civilian gun stock, and ownership of those weapons is highly concentrated in less than 1% of the U.S. population.

Palmer v. District of Columbia, Unknown Court and Case Number. A federal judge on Saturday (7/26/14) overturned Washington D.C.'s ban on carrying handguns outside the home, saying it was unconstitutional. "There is no longer any basis on which this Court can conclude that the District of Columbia's total ban on the public carrying of ready-to-use handguns outside the home is constitutional under any level of scrutiny," Judge Frederick Scullin said in an opinion. "Therefore, the Court finds that the District of Columbia's complete ban on the carrying of handguns in public is unconstitutional," he added in his 19-page ruling. The court ordered the city to allow residents to carry handguns outside their homes and to let non-residents carry them as well.

Peruta v. County of San Diego, ___ F.3d ___ (9th Cir. No. 10-56971, filed 02/13/14). California must allow law-abiding citizens to carry concealed firearms in public. San Diego County violates the Constitution's Second Amendment by requiring residents to show "good cause" - and not merely the desire to protect themselves - to obtain a concealed-weapons permit. "The right to bear arms includes the right to carry an operable firearm outside the home for the lawful purpose of self-defense," said Judge Diarmuid O'Scannlain in the majority opinion.

4th Amendment

Aipperspach v. McInerney, ___ F.3d ___ (8th Cir. No. 13-2942, filed 09/05/14). The Eighth Circuit Court of Appeals upheld as reasonable the shooting of a man with a BB gun and held that a news helicopter's video of the incident did not provide the perspective of officers on the scene. Riverside officers responded to an unwanted subject call and were told that Al-Hakim, was headed into a nearby wooded area. Officers also learned there might be an unspecified warrant for Al-Hakim's arrest. A Riverside Sgt. fund Al-Hakim and asked him to come up out of a ravine and talk. Al-Hakim refused, and produced what appeared to be a black handgun. In fact, the gun was a Daisy 008 air pistol capable of firing steel BBs or lead pellets. Officers ordered Al-Hakim at least 12 times to drop his weapon. He failed or refused. Four officers fired rounds at Al-Hakim. A news helicopter circling overhead captured the incident on video. Consistent with the officers' version of events, it depicts law enforcement personnel arrayed on the ridge in a half-circle above Al-Hakim, who is sitting at the bottom of a ravine holding a black gun in his left hand. The video shows Al-Hakim slipping and straightening back up. In the process, his left hand moves the gun away from his head, out in front of his body, and sweeps up toward the officers on the ridge. As Aipperspach describes that movement, "as if attempting to surrender." Almost immediately, the video shows Al-Hakim fall as he is struck by multiple bullets. Aipperspach, as the personal representative of the estate of Al-Hakim, filed suit against all the officers on scene and the department and argued that the shooting was excessive force under the Fourth Amendment. The district court granted summary judgment for all officers and the department and held that the shooting was reasonable under the Fourth Amendment. The Circuit noted that the responding officers were confronted with a suspect who appeared to be armed with a handgun, refused at least 12 commands to drop the gun, pointed the gun once at Sergeant Jones, and then waved it at officers in a manner they perceived as a threat of serious bodily injury. The court held that these circumstances were sufficient to provide the officers an objectively reasonable belief that Al-Hakim posed a threat of serious physical harm to the officers. The court further considered with it was proper for the trial court to hold that the news helicopter video did not offer a perspective relevant to determine the reasonableness of the of the officer's actions on the ground. The video taken from high above the scene shed no material light on the question of whether officers perceived Al-Hakim as an imminent threat.

United States v. Denson, 2014 U.S. App. LEXIS 24616 (10th Cir. No. 13-3329, Kan. Dec. 30, 2014) Officers went to Denson’s house to serve an outstanding warrant for his arrest after Denson stopped reporting to his probation officer. After using a handheld Doppler radar device and developing other evidence, the officers believed Denson was inside the house. The officers entered the house and arrested Denson. While conducting a protective sweep, officers saw several firearms in a closet and seized them. The government indicted Denson for possession of a firearm by a convicted felon. First, Denson argued the district court should have suppressed the firearms the officers seized from his house. The court disagreed. An arrest warrant implicitly carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is inside. Finding there was probable cause, the Court said, "Probable cause doesn’t require proof that something is more likely true than false. It requires only a “fair probability,” a standard understood to mean something more than a “bare suspicion” but less than a preponderance of the evidence at hand. See United States v. Ludwig, 641 F.3d 1243, 1252 & n.5 (10th Cir. 2011) (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983))." In this case, the court held the officers established that Denson was inside the house when they entered. First, Denson had recently opened a utility account for the house and as far as the officers knew, Denson did not have another residence. Second, the officers knew Denson had not reported any earnings, which suggested Denson did not work and might be home at 8:30 a.m. on a weekday. Third, Denson had absconded and was hiding from law enforcement. Fourth, the electric meter on the house appeared to be running very fast, an indication that someone might be inside using electrical devices. The court declined to rule on whether the officers’ use of the Doppler radar device violated the Fourth Amendment. The court found that based on the facts outlined above, the officers independently established Denson was inside the house. However, the court cautioned that the government’s warrantless use of such a powerful tool to search inside homes poses grave Fourth Amendment questions. Second, Denson argued the officers discovered the firearms as the result of an unlawful protective sweep. The court disagreed. The officers knew Denson was a fugitive with a history of violent crime. In addition, the officers knew Denson was a gang member with violent associates. Finally, the officers knew a second person lived in Denson’s house who was wanted on an outstanding warrant. Based on these facts, the court concluded it was reasonable for the officers to believe Denson might not be alone in the house and that anyone else inside could be dangerous. Finally, Denson argued the officers unlawfully seized the firearms they found in the closet. Denson claimed at the time of the search, the officers could not exclude the possibility the guns belonged to the other resident of the home and not him. Again, the court disagreed. A convicted felon, such as Denson, violates federal law by actually or constructively possessing firearms. A felon constructively possesses a firearm if he “knowingly holds the power to exercise or control over them.” In this case, Denson listed himself with the utility company as the primary account holder and the officers found the firearms in an unlocked closet that could be accessed by either Denson or the other resident. As a result, the court held when the officers found the firearms, they could reasonably believe the guns were accessible to Denson; therefore, he constructively possessed them.

United States v. Hood, 2014 U.S. App. LEXIS 24239 (10th Cir. 13-6182, Okla. Dec. 17, 2014)

Officers suspected Milton was involved in a string of burglaries. The officers went to Milton’s apartment complex, located in a high-crime area of the city, and learned that Milton lived in apartment 108. After knocking and identifying themselves, the officers heard noise coming from inside the apartment, but no one answered the door. After a few minutes, the officers walked over to the apartment complex’s parking lot to inspect a car they suspected belonged to Milton. While the officers were in the parking lot, a resident shouted to them that someone was running from apartment 108. Two officers ran back to the complex and encountered a man, later identified as Hood. When the officers saw Hood, he was facing a corner of the building with his back toward the officers. Although it was an unseasonably warm day, Hood was wearing a winter jacket and making motions as if he was trying to remove something from his inside jacket pocket. Believing that Hood might be reaching for a weapon, the officers drew their firearms and ordered Hood to the ground. Hood went to the ground, but he still appeared to be grasping for something inside his jacket. When one of the officers asked Hood if he had a firearm underneath him, Hood replied, “I don’t know.” The officers handcuffed and frisked Hood, removing a pistol from the right inside pocket of Hood’s jacket. The government indicted Hood for being a felon in possession of a firearm. Hood filed a motion to suppress the pistol seized from his jacket, arguing the officers did not have reasonable suspicion to stop and frisk him. Additionally, Hood argued the officers’ use of force during the stop was unreasonable. The court disagreed. First, the officers were investigating a burglary in a high-crime area. Second, a resident of the apartment complex alerted the officers that a person was running from the apartment where their suspect lived. Third, when the officers confronted Hood he was wearing a winter jacket, despite the warm day. Fourth, the officers saw Hood fumbling in his jacket pockets, which they believed might indicate he was attempting to remove a weapon. Under these circumstances, the court concluded the officers were justified in drawing their firearms and ordering Hood to the ground.

Heien v. North Carolina, 74 U.S. ___, 135 S. Ct. 530, 190 L. Ed. 2d 475 (No. 13-604, filed 12/15/14). An officer's mistake of law can give rise to reasonable suspicion to stop a car. Heien was driving a car which undisputedly had only one of its two rear brake lights working. The North Carolina statute at issue refers to “a stop lamp,” suggesting the need for only a single working brake light, but it also provides that “[t]he stop lamp may be incorporated into a unit with one or more other rear lamps,” and another subsection of the same provision requires that vehicles “have all originally equipped rear lamps or the equivalent in good working order,” arguably indicating that if a vehicle has multiple “stop lamp[s],” all must be functional. A deputy stopped Heien’s car, ultimately finding cocaine in it. Along with charging Heien with cocaine trafficking, the deputy cited Heien for a non-working brake light, and the state trial court agreed that the stop was valid based on this observed traffic violation. Heien then pled guilty conditionally, reserving his right to appeal the denial of his suppression motion. The Supreme Court upheld the stop. "To be reasonable is not to be perfect, and so the Fourth Amendment allows for some mistakes on the part of government officials, giving them 'fair leeway for enforcing the law in the community’s protection.' Brinegar v. United States, 338 U. S. 160, 176 (1949) .'" In Michigan v. DeFillippo, the Court had ruled that mistaken reliance on an ordinance later held unconstitutional “does not undermine the validity of the arrest.” Cf. Martin v. KDOR, 285 Kan. 625 (2008)(reaching opposite conclusion). It saw reasonable mistakes of law as no different than mistakes of fact.

Simpson v. Kansas, ___ F.3d ___ (10th Cir. No. 13-3272, filed 11/26/14). The Tenth Circuit held that a driver's arrest for failing to wear her seatbelt did not violate the Fourth Amendment. Olga Simpson was driving her children home from school when she was pulled over by Trooper Brame for failing to wear her seatbelt. Trooper Brame issued Simpson a citation with a $169 fine, which Simpson complained she could not afford. As Trooper Brame returned to his vehicle, he saw Simpson tearing up the citation, which caused him to believe she did not intend to honor it. Trooper Brame decided to arrest Simpson and, after a struggle, he shoved her to the ground, put his weight on her, and completed the arrest. The entire interaction was captured by a video recording, and Simpson eventually filed suit under 42 U.S.C. § 1983. Simpson's claims were dismissed on summary judgment, which she appealed. The Tenth Circuit initially noted that violation of K.S.A. 8-2503(a)(1), which requires adults in cars to wear seatbelts, was a misdemeanor. Because the Fourth Amendment permits arrest if an officer has probable cause to believe even a very minor criminal offense has been committed in his or her presence, the court agreed that Trooper Brame had probable cause to arrest Simpson. Simpson argued that even if Trooper Brame initially had probable cause, it was lost when he issued her a citation instead of arresting her. The Tenth Circuit disagreed, explaining that Kansas law contemplates that a violator of traffic laws must make a written promise to appear in court by signing the citation. Because Simpson tore up her citation and never signed it, the court concluded that Trooper Brame did not require a new justification for arresting her. Finally, based on its review of the video footage, the court concluded that Trooper Brame did not use excessive force in arresting Simpson, citing its holding in Meacham v. Frazier, 500 F.3d 1200 (10th Cir. 2007).

Commonwealth v. Baust, Virginia Commonwealth Court No. CR14-1439, profiled on hamptonroads.com 10/30/2014. A criminal defendant can be compelled to give up his fingerprint, but not his pass code, to allow police to open and search his cellphone. Prosecutors allege that Baust strangled his wife and said video equipment in Baust's bedroom may have recorded the couple's fight. If so, they alleged, the the video could be on his cellphone. Judge Steven C. Frucci ruled this week that giving police a fingerprint is akin to providing a DNA or handwriting sample or an actual key, which the law permits. A pass code, though, requires the defendant to divulge knowledge, which the law protects against

Tracey v. Florida, ___ Fla.2d ___ (No. SC11-2254, filed 10/16/14). Officers used a Stingray to track a drug dealer's movements on public roadways. The Florida Supreme Court suppressed the evidence, holding Tracey had a subjective expectation of privacy in the location signals transmitted solely to enable the private and personal use of his cell phone, even on public roads, and that he did not voluntarily convey that information to the service provider for any purpose other than to enable use of his cell phone for its intended purpose. Such a subjective expectation of privacy of location as signaled by one’s cell phone—even on public roads—is an expectation of privacy that society is now prepared to recognize as objectively reasonable under the Katz test. Therefore, we hold that regardless of Tracey’s location on public roads, the use of his cell site location information emanating from his cell phone in order to track him in real time was a search within the purview of the Fourth Amendment for which probable cause was required. Because probable cause did not support the search in this case, and no warrant based on probable cause authorized the use of Tracey’s real time cell site location information to track him, the evidence obtained as a result of that search was subject to suppression.

United States v. Salas, 2014 U.S. App. LEXIS 12387 (10th Cir. No. 13-7036, Okla. July 1, 2014). A police officer stopped Salas after the officer saw Salas' car twice cross the fog line on the right side of the highway. After issuing Salas a warning ticket for failure to stay in his lane, the officer returned Salas' documents and told him he was "good to go." Salas thanked the officer for giving him a warning, shook the officer's hand and began to leave. The officer asked Salas if he had time for a few more questions, and Salas replied, "Sure." After Salas denied having drugs in his car, the officer asked if he could search the vehicle. Salas consented to the search. The officer opened the trunk, which contained a suitcase. Inside the suitcase, the officer found approximately twenty pounds of methamphetamine. Salas was charged with possession with intent to distribute methamphetamine. Salas argued the methamphetamine should have been suppressed because the officer did not have reasonable suspicion or probable cause to stop him. Salas also argued he did not voluntarily give the officer consent to search the car. The court disagreed. Okla. Stat. § 11-309 provides that "a vehicle shall be driven as nearly as practicable entirely within a single lane." The Tenth Circuit has held that a single violation of a traffic statute virtually identical to § 11-309 can provide reasonable suspicion to conduct a traffic stop. Here, the district court found that the officer saw Salas' vehicle cross the fog line twice. Consequently, the officer had reasonable suspicion that Salas violated § 11-309 and was justified in conducting a traffic stop. Next, the officer's dash camera video showed that when the officer asked Salas if he could search the car, Salas replied, "Sure." The officer then asked Salas, "You sure you don't mind?" Salas replied, "No." Salas' relaxed demeanor and lack of physical coercion or intimidating body language or tone by the officer led the court to conclude Salas voluntarily consented to the search of his car.

Leatherwood v. Welker, ___ F.3d ___ (10th Cir. No. 13-6152, filed 07/08/14). Leatherwood was convicted of crimes in Oklahoma and placed on probation. His probation officer received information from Leatherwood's ex-wife that Leatherwood raped his current girlfriend and had guns. A district attorney received information from a confidential informant that Leatherwood had alcohol and sexual materials at home. The probation officer conducted a warrantless search of Leatherwood's home. Leatherwood sued. The probation officers appealed the denial of summary judgment and qualified immunity to the Tenth Circuit Court of Appeals. The Circuit held defendants had reasonable suspicion that Mr. Leatherwood committed probation violations, and thus the search of his home did not violate his Fourth Amendment rights.

United States v. Davis, 2014 U.S. App. LEXIS 8583 (10th Cir. No. 13-3037, Kan. May 7, 2014). In March 2011, an investigation into a string of armed robberies led police officers to suspect the robbers were using a car belonging to Baker's girlfriend. Police officers installed a GPS tracking device onto the rear bumper of the car while it was parked at an apartment complex. Police officers also obtained a warrant to track the GPS signal from Baker's cell phone. Immediately after the robbery of an Overland Park Radio Shack store, FBI agents and police officers used a combination of GPS coordinates from the car and Baker's cell phone to locate and stop the car containing Baker and Davis. Inside the car, officers found evidence connecting Baker and Davis to the robbery. The government charged Davis with a variety of criminal offenses. Davis moved to suppress the evidence. The court held Davis did not have standing to object to the stop. Because Davis did not own or regularly drive the car to which the GPS device was attached, the court concluded he did not have standing to object to the evidence obtained as a result of the alleged illegal placement of the GPS device on the car and its subsequent monitoring.

United States v. Garcia, 2014 U.S. App. LEXIS 8816 (10th Cir. No. 13-2155, N.M. May 12, 2014) While on patrol on a lightly traveled road, Officer Devos saw a car with a cracked windshield traveling in the opposite direction. Devos conducted a traffic stop and encountered Maner, the driver, and Garcia, the passenger. Devos arrested Maner for driving with a suspended driver's license and decided to have the car towed because it could not be driven safely with its cracked windshield. Before towing the car, department policy required Devos to inventory the contents of the car, which Devos had to do by himself because no other officers were available to assist him. Before conducting the inventory, Devos asked Garcia, who appeared to be nervous, to get out of the car. Devos recognized Garcia from a recent encounter. Two weeks earlier, Devos had deployed his Taser against Garcia after Garcia actively resisted arrest. In addition, Devos knew Garcia had a prior criminal history for armed robbery. Based on these facts, Devos decided to frisk Garcia for weapons before he turned his back on Garcia to conduct the inventory search. During the frisk, Devos found a gun magazine containing seven .380 caliber cartridges. The government indicted Garcia for being a felon in possession of ammunition. Garcia argued Devos did not have reasonable suspicion that Garcia was armed and dangerous; therefore, the frisk was unlawful, and the ammunition should have been suppressed. The court disagreed. First, Devos' previous encounter with Garcia and Devos' knowledge that Garcia had a criminal history that included armed robbery supported a reasonable suspicion Garcia was presently armed and dangerous. Second, Devos had a reasonable concern for his safety because the stop occurred on an isolated road, at night, and Devos needed to turn his back to Garcia to conduct the inventory search. Based on the totality of the circumstances, the court concluded Officer Devos had reasonable suspicion under the Fourth Amendment to frisk Garcia.

14th Amendment

Hall v. Florida, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 12-10882, filed 05/27/14). As interpreted by the Florida Supreme Court, Florida's rule requiring a threshold showing that a defendant have an IQ score of 70 or below before being permitted to present any additional intellectual disability evidence so as to be deemed ineligible for the death penalty, is unconstitutional.

State v. Santos-Vega, ___ Kan. ___, ___ P.3d ___ (No. 104485, filed 03/21/14). Santos-Vega fondled 15 and 11 year olds who occasionally stayed at his girlfriend's house. A detective that volunteered an invocation in violation of Doyle, along with the who to you believe nature of the aggravated indecent liberties charge, denied defendant a fair trial. This was a credibility contest, and the impact of the Doyle violation, complete with the detective's histrionic emphasis, and the lack of unanimity between the evidence and the charges being deliberated, which remained unexplained despite the jury's obvious confusion, meant the state failed to establish, beyond a reasonable doubt that the combined effect of these errors did not affect the jury's verdicts.

State v. Franco, ___ Kan.App.2d ___, ___ P.3d ____ (No. 107814, filed 02/14/14). Based on Lawrence v. Texas, 539 U.S. 558, 578-79, 123 S. Ct. 2472, 156 L. Ed. 2d 508 (2003), K.S.A. 21-3505 and its recodification in K.S.A. 2013 Supp. 21-5504(a) is unconstitutional and unenforceable with respect to anal intercourse between consenting adults of the same sex conducted in private. Lawrence also precludes criminalizing oral-genital contact between consenting adults of the same sex. 539 U.S. at 578-59. So K.S.A. 2013 Supp. 21-5504(a) would be unconstitutional if it were enforced that way, as well.

ADA

Bhogaita v. Altamonte Heights Condominium Ass'n, ___ F.3d ___ (11th Cir. No. 13-12625, 13-13914, filed 08/27/14). Appellee Ajit Bhogaita persuaded a jury that Appellant Altamonte Heights Condominium Association, Inc., ("the Association") violated the disability provisions of the Federal and Florida Fair Housing Acts, 42 U.S.C. § 3604(f)(3)(b) (“FHA”) and Fla. Stat. § 760.23(9)(b), respectively, when it enforced its pet weight policy and demanded Bhogaita remove his emotional support dog from his condominium. His Dr. described the dog as an "emotional support animal," to assist with Bhogaita's mental illness. The jury awarded Bhogaita $5,000 in damages, and the district court awarded Bhogaita more than $100,000 in attorneys' fees. The Association appealed both the judgment entered on the jury's verdict and the award of attorneys' fees. The 11th Circuit affirmed.

Alcohol Enforcement

Kite's Bar & Grill, Inc. v. Kansas Dept. of Revenue, ___ Kan.App.2d ___, ___ P.3d ____ (No. 110315 filed 06/27/14). KDOR suspended Kite's liquor license for 4-weekend days due to a minor obtaining or possessing alcohol on Kite's premises. A Riley County officer had located a 19-year old drinking in the bar and notified Kite's manager, but did not issue a citation. KDOR later mailed a citation and suspended the license. Kite's appealed, alleging strict liability was inappropriate and substantial compliance with the notice statute by ABC was insufficient. The Court of Appeals agreed with the notice argument and reversed the suspension. K.S.A. 41-106 is plain and unambiguous in requiring that a civil citation for a violation of the Kansas Liquor Control Act be delivered to the person committing the violation at the time of the violation and then a copy of the citation be mailed to the licensee within 30 days of the violation. Because ABC did not do so here, the citation it later mailed to Kite's was unenforceable and void.

Alternative Means

State v. Nunez, ___ Kan. ___, ___ P.3d ___ (No. 102377, filed 01/24/14). Nunez forced himself on his ex-wife, then appealed claiming that rape is an alternative means crime and the state did not present any evidence of fear, so his conviction must be reversed. The Court disagreed. The phrase "force or fear" in Kansas' rape statute, K.S.A. 21-3502(a)(1)(A), merely describes a factual circumstance that may prove a distinct, material element of rape—namely, having nonconsensual sexual intercourse with a victim who is "overcome." In other words, the actus reus of subsection (a)(1)(A) is "to overcome," and the phrase force or fear merely describes this material element. Accordingly, the phrase force or fear does not create alternative means of committing rape and, consequently, a defendant's conviction for rape under K.S.A. 21-3502(a)(1)(A) will be affirmed on appeal when the jury was instructed that it must find that the victim was overcome by force or fear and evidence of either force or fear was presented at trial. Language contained in State v. Timley, 255 Kan. 286, 875 P.2d 242 (1994), and State v. Wright, 290 Kan. 194, 224 P.3d 1159 (2010), suggesting otherwise is specifically disapproved. See also State v. Brooks, ___ Kan. ___, ___ P.3d ___ (No. 102452, filed 01/24/14). Brooks blackmailed his ex-wife into having sex with him. The Court agreed with the Court of Appeals that the rape statute sets out one way to commit rape, but disagreed with the Court of Appeals that there was no evidence of fear. Fear, as used in the statute, is an inherently subjective concept because what frightens one person may not frighten another at all. Therefore, whether a victim is overcome by fear for purposes of K.S.A. 2005 Supp. 21-3502(a)(1)(A) is generally a question to be resolved by the finder of fact.

ALPR

Case name unknown, profiled on Lawofficer.com on 09/02/14. An LA County superior court judge sided with the Los Angeles Police Department and the Los Angeles County Sheriff’s Department in ruling that License Plate Reader (LPR) data is not subject to disclosure. The release of the data had been sought by the American Civil Liberties Union (ACLU) and the Electronic Frontier Foundation (EFF). A key part of the ruling was that the records were exempt under the California Government Code that allows records of an investigative nature to be withheld. The judge stated:

 

It [LPR data] also would reveal patrol patterns which would compromise ongoing investigations, and even fixed point data could undermine investigations. Disclosure could also be used by a criminal to find and harm a third party.

 

There also is a public interest in maintaining the privacy of vehicle drivers and owners. Disclosure of ALPR data would release records detailing the precise locations of vehicles bearing particular license plate numbers on specified dates and times. The privacy implications of disclosure for individual drivers and car owners are substantial. Members of the public would be justifiably concerned about LAPD or LASD releasing information regarding the specific locations of their vehicles on specific dates and times to anyone.


Judge Chalfant noted that if the court determined the data was not exempt, the determination would require the release of LPR data to other members of the public whose requests may be focused on a particular vehicle or location. “Disclosure to one member of the public constitutes a waiver of the exemption, and any person who requests a copy would be entitled to it. Respondents would be powerless to refuse subsequent requests based on concerns about who is seeking the data and why,” Chalfant said, citing County of Santa Clara v. Superior Court, (2009) 170 Cal.App.4h 1301, 1321-22.

Molner v. Prairie Village (not an actual case - just an article in the Prairie Village Post on 4/16/14 that has turned Molner into the posterboy on the evils of ALPR data). A false reading by a license-plate scanner mounted on a Prairie Village police car led officers to stop an innocent motorist on 75th Street Monday — an incident that has the PV-based attorney questioning the department’s protocol for officers unholstering their weapons. A PV officer stopped Mark Molner after a hot list stolen car alert. As it turned out, though, the license scanner mounted on the car had misread a "7" on Molner’s license plate as a "2." The alert the officer received was related to a stolen Oldsmobile. Molner was driving a black BMW. The cars had been traveling opposite directions and the officer had to do a U-turn and catch up to Molner. "Due to rush hour traffic, [the officer] was unable to compare the two tags prior to activating a traffic stop. What he did know is that the tag from the [license plate reader] came back to an Oldsmobile, however, that doesn’t mean the tag isn’t stolen. The BMW could be stolen or it could have simply been a switched tag,” per Capt. Wes Lovett.

Civil & Criminal Liability

Whitfield v. United States, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 13-9026, filed 01/20/15). In this case, petitioner fled police after a botched bank robbery, entered the home of a 79-year-old lady through an unlocked door, guided the lady through the hallway to a room, where she suffered a fatal heart attack. Petitioner was convicted of violating 18 U.S.C. section 2113(e), which establishes enhanced penalties for anyone who "forces a person to accompany him" in the court of committing or fleeing from a bank robbery. Judgment of the Fourth Circuit finding that petitioner's movement with the deceased qualified as forced accompaniment is affirmed, where a bank robber forces a person to accompany him, for purposes of section 2113(e), when he forces that person to go somewhere with him, even if the movement occurs entirely within a single building or over a short distance.

State v. Howard, ___ Kan.App.2d ___, ___ P.3d ____ (No. 110439, filed 12/05/14). Officer's stopped Howard's vehicle for a traffic violation and arrested him on warrants. Searching the car after seeing drug paraphernalia in plain view, officers found an AK-47 and the State later charged Howard with criminal possession of a firearm, believing he was prohibited from possessing a firearm because he had pled guilty to first-degree burglary in Missouri in 2006. Howard argued he was not prohibited from possessing a firearm because he received and completed probation for a suspended imposition of sentence (SIS) in Missouri (which is not considered a conviction there), that the police discovered the gun during an unlawful search of his vehicle, and that the district court erred in excluding evidence that he lawfully purchased the AK-47 in Missouri after reporting his criminal background for a federal background check. The Court held Howard was prohibited from possessing a firearm in Kansas because the Missouri court found him guilty of first-degree burglary and in Kansas a person is "convicted" when a sentencing court makes an adjudication of guilt. See K.S.A. 2013 Supp. 21-5111(d). Second, the State lawfully searched Howard's vehicle. The police are not required to obtain a warrant to conduct a search if there are exigent circumstances and probable cause to search. Here the mobility of Howard's vehicle created exigent circumstances, and the torn plastic baggie and the officer's training and experience regarding such baggies created probable cause to search. Third, the district court did not err in excluding evidence that Howard lawfully purchased the AK-47 in Missouri. The evidence was irrelevant because criminal possession of a firearm is a general-intent crime and the State had to prove only that Howard possessed the firearm, not that he knew he was considered a convicted felon in Kansas.

State v. Haskell, ___ Kan.App.2d ___, ___ P.3d ____ (No. 111344, filed 10/31/14). Sherry L. Haskell's daughter threw a house party where a number of minors consumed alcohol. Haskell attended the party, serving as the disc jockey, dancing, and drinking with the minors. The State charged her with unlawfully hosting minors consuming alcohol under K.S.A. 2013 Supp. 21-5608. The crime of unlawfully hosting minors is described by statute as recklessly permitting a person's residence to be used by an invitee or an invitee of the person's child in a manner that results in the unlawful possession or consumption of alcoholic liquor or cereal malt beverage by a minor. K.S.A. 2013 Supp. 21-5608(a). Haskell moved to dismiss, arguing that the legislature's use of the word invitee—a word that, in the field of tort law, refers to a business visitor—rendered the statute inapplicable. The district court agreed and dismissed the charge. The Court of Appeals reversed, finding that the common meaning of the word invitee is "one who is invited."

State v. Wilkins, ___ Kan.App.2d ___, ___ P.3d ____ (No. 109313, filed 10/31/14). Breonna Wilkins was a girlfriend to one of the Knollwood Nine who killed Natalie Gibson during a burglary. She contacted one of the nine and urged them to keep their mouth shut and not take a plea. She was convicted of aggravated intimidation of a witness in violation of K.S.A. 2011 Supp. 21-5909. She claims that the phrase "thwart or interfere in any manner with the orderly administration of justice" in K.S.A. 2011 Supp. 21-5909 is unconstitutionally vague. The Court of Appeals disagreed. "Thwart" is defined to mean "to run counter to so as to effectively oppose or baffle; contravene; to oppose successfully; defeat the hopes or aspirations of." Webster's Ninth New Collegiate Dictionary 1232 (1984). The word "interfere" is defined as "to interpose in a way that hinders or impedes." Webster's Ninth New Collegiate Dictionary 631 (1984).

Therefore, if the purpose of advice given to a witness is to hinder the State's one complete opportunity to investigation or prosecute a claim, it is intimidation of a witness. If the advice is given in good faith based on what is perceived to be the best interests of the witness, it is not intimidation of a witness. The simple, ordinary definitions of the words in the statute are clear enough and not so vague as to leave ordinary people guessing as to whether they have subjected themselves to criminal liability.

Carroll v. Carman, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 14-212, per curiam, filed 11/10/14). Officers went to a residence on a corner lot looking for a car thief. Not finding any parking in front of the home, they parked near the back and knocked on a sliding glass door that opened onto a ground-level deck. They did not find the car thief in the residence, but the homeowner sued claiming the knock and talk was invalid because officers did not start at the front door. The Third Circuit agreed and denied summary judgement for the officer. The Supreme Court reversed. "We do not decide today whether those cases were correctly decided or whether a police officer may conduct a “knock and talk” at any entrance that is open to visitors rather than only the front door. “But whether or not the constitutional rule applied by the court below was correct, it was not ‘beyond debate.’ ” Stanton v. Sims, 571 U. S. ___, ___ (2013) (per curiam) (slip op., at 8) (quoting al-Kidd, 563 U. S., at ___ (slip op., at 9)). The Third Circuit therefore erred when it held that Carroll was not entitled to qualified immunity."

Michaels v. City of McPherson, court and case No. unknown, profiled on KWCH on 10/17/14. A federal jury has awarded nearly $1 million in wages and damages to a former McPherson police officer who was fired after being found asleep on duty. Jurors found the city of McPherson discriminated against Matthew B. Michaels on account of a disability of sleep apnea. A court judgment filed Wednesday orders the city to pay $921,657 — plus interest, court costs and attorney's fees. That amount includes back and future wages as well as damages for pain and suffering. Attorney Ray Simmons said in an email Thursday that Michaels is pleased to get a "name-clearing hearing" in federal court where a jury rendered a verdict in his favor. McPherson City Attorney Jeff Houston said the city planned to ask the judge to overturn the verdict and, failing that, planned to appeal.

Wilson v. Village of Los Lunas, ___ F.3d ___ (10th Cir. No. 13-2203, filed 07/22/14, unpublished). Officers stopped Wilson for traffic violations. Depending on who you believe, either Wilson was a jerk or the officers were jerks, but Wilson was ordered out of the car and did not comply, so he was physically subdued and arrested. Wilson claimed officers violated his Fourth, Fourteenth and First Amendment rights. The district court granted the officers summary judgment based on qualified immunity. The Tenth Circuit affirmed. Wilson's traffic stop was not completed because there is no evidence that he ever signed the citations. To the contrary, he began to argue with the officers when they tried to issue the citations. At that point they ordered him from the car which ultimately led to his arrest for battery on a peace officer and resisting arrest under New Mexico statute. Although New Mexico has a "catch and release" statute NMSA § 66-8-123, it doesn't apply where the offender hasn't signed the citation before engaging in other criminal acts. Finally, although Wilson had complained to officers about a prior run-in with the police, the law was not clearly established regarding retaliatory arrest.

Al-Turki v. Robinson, ___ F.3d ___ (10th Cir. No. 13-1107, filed August 12, 2014), the Tenth Circuit affirmed denial of qualified immunity for a prison nurse on a prisoner's § 1983 claim for refusing to treat him. At approximately 8:30 p.m., prisoner Homaidan Al-Turki began experiencing severe pain in his abdomen that caused him to collapse, vomit, and fear he was dying. Al-Turki used his cell intercom to request medical treatment. The responding officer called the prison nurse on duty, Mary Robinson, who told him she would not treat Al-Turki because it was too late and his complaint was not an emergency. Al-Turki complained on two other occasions during the night and was informed by Robinson that he could make a written request to see medical staff in the morning. Al-Turki lost consciousness or fell asleep at approximately 11:30 p.m., and by 6:00 a.m. was experiencing no pain. During a medical visit in the morning, Al-Turki passed two kidney stones. He subsequently filed suit against Robinson under 42 U.S.C. § 1983 for refusing to treat him. On Robinson's motion for summary judgment, the district court held that it was clearly established Tenth Circuit law that a medical professional who knows of and appreciates an inmate's serious risk of medical harm must make a good faith effort to assess him to avoid a finding of deliberate indifference. The district court therefore declined to grant Robinson summary judgment on qualified immunity grounds, and she filed an interlocutory appeal to the Tenth Circuit. On review, the Tenth Circuit dismissed Robinson's argument that pain associated with kidney stones was too benign to trigger liability. The court explained that although the parties all now know that Al-Turki was suffering from kidney stones, the situation that presented itself to Robinson could easily have been life-threatening, and her choice to ignore multiple requests for medical help from an inmate experiencing severe abdominal pain was deliberately indifferent under its holding in Self v. Crum, 439 F.3d 1227, 1232 (10th Cir. 2006). The Tenth Circuit affirmed the district court's denial of summary judgment on qualified immunity grounds.

State v. Kendall, ___ Kan. ___, ___ P.3d ___ (No. 106960, filed 08/08/14). Kendall kept calling his ex-wife from the El Dorado correctional facility. Although he never spoke to her, call records showed that he called her. The Court of Appeals reversed Kendall's conviction for stalking concluding there was insufficient evidence showing that Kendall had committed an "act of communication" as proscribed by the stalking statute. The Supreme Court reversed the Court of Appeals, holding that K.S.A. 2010 Supp. 21-3438, requires the State to show that the perpetrator sent or transmitted a communication to the victim and the victim received the communication. It held Kendall violated the stalking statute by calling the victim's cell phone in violation of a protective order and, in turn, the victim seeing on her phone's caller ID that the defendant was calling her cell phone.

Buchanan v. City of Topeka, ___ F.Supp. ___ (U.S.D.C. Kan. No. ____, filed 7/30/14). Buchanan alleged Topeka police and prosecutors engaged in an elaborate conspiracy that violated his constitutional rights to due process and a fair trial. Melgren dismissed it, finding that Heck v. Humphrey required Buchanan to prove his conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal or called into question by a federal court’s issuance of a writ of habeas corpus, but Buchanan could not make that showing. Buchanan acted as his own attorney in filing the suit Nov. 27 against the city of Topeka, Shawnee County and the state of Kansas. Buchanan then filed an amended complaint Dec. 2 listing the city, the county and various city, county and state officials as defendants. The state was no longer listed as a defendant in the amended complaint. Buchanan contended the defendants violated his Fifth and 14th Amendment rights; participated in a civil conspiracy and/or collusion to fraudulently deprive him of his liberty and property; and committed intentional infliction of emotional distress. The claims were linked to a case in which a jury in Topeka found Buchanan guilty on Dec. 2, 2011, of driving under the influence by someone who has at least two DUI convictions. He was sentenced to 120 days in jail and a $2,500 fine. Buchanan alleged Topeka police neglected to perform required quality control checks in its breath-testing machine; the Kansas Department of Health and Environment oversaw its breath-testing program in a neglectful manner; and a KDHE official directed a Topeka police supervisor to alter, remove and conceal public records that were turned in to the KDHE Breath Alcohol Program and used in court. Buchanan also represented himself in filing a U.S. District Court lawsuit Nov. 27 against Douglas Wells, the Topeka attorney who represented him in the DUI case. Melgren dismissed that suit July 9.

Engle v. City of Mission, Court and Case Number Unknown, profiled in Prairie Village Post 7/30/14. The multi-million dollar lawsuit against the City of Mission over a March 2013 incident at the Mission post office on Broadmoor has been ended, but the terms of the agreement that led to its dismissal are being kept secret. Catrina Engle had sued the city, then police chief John Simmons and officers Timothy Gift and Michelle Pierce, asking for $1.75 million in compensatory damages and $1.75 in punitive damages. The suit was dismissed voluntarily in late June by both sides with each party paying its own attorney’s fees. The city was represented by attorneys for its insurance company. An open records request by PVPost.com for the terms of any agreement or any payments issued by the city were all met with the response that the information was “confidential and privileged per the insurance company’s lawyer, Peter Maharry. Fisher Patterson Sayler & Smith.” Maharry did not return a call Wednesday morning. The only substantive answer provided to the request said that the “City’s deductible was $5,000.” That was in response to a question asking for records that would indicate payments by the city or its insurance company to Engle under any agreement. The Mission City Council held an executive session in June near the time of the dismissal, citing litigation as the justification for the closed meeting. A confidentiality agreement is reportedly in place over terms of any settlement. The insurance company’s attorneys represented the city in the federal suit. During the post office incident, officers handcuffed Engle and took her to the ground. She was charged with interfering with a police officer and disorderly conduct and found guilty by Mission City Judge Keith Drill in August 2013. She appealed the conviction and was found innocent on both charges in Johnson County District Court in November 2013. Mission City Attorney David Martin prosecuted that case for the city. In her federal lawsuit, filed before the district court trial, she alleged that police threw her to the ground, searched her purse, performed a cavity search and took her driver’s license without consent. Her children were nearby when she was taken into custody. She claimed a violation of her Constitutional rights and emotional harm to the children. Simmons left the department the next month after the federal suit was filed. Pierce, the officer who initially interacted with Engle at the scene, also has left the department.

Stormont-Vail Hospital v. Imler, ___ Kan.App.2d ___, ___ P.3d ____ (No. 110553, filed 07/25/14). Imler got in a bar fight and required medical clearance prior to being jailed. A Topeka Police Officer took him to the emergency room. Imler received medical attention costing $3,825.20, but he failed to pay it contending the Topeka Police Department should pay it. Stormont-Vail sued Imler. The district judge entered judgment for plaintiff for $2000 and allowed Imler to make payments. The Court of Appeals reversed, finding no evidentiary basis to reduce the judgment amount, nor any authority to establish a payment plan.

State v. Parker, Montgomery County District Court Case No. Unknown, reported in Topeka Capital Journal 07/15/14). A former Independence police chief pled Tuesday (07/15/14) in Montgomery County District Court to four felonies tied to his stint as chief. Former Independence Police Chief Kenneth Parker pled to perjury, official misconduct, misuse of public funds, and theft of property valued at more than $25,000. Judge Gary House sentenced Parker to concurrent terms of six months for the perjury charge, 12 months for the official misconduct charge, 12 months for the misuse of public funds charge, and 12 months for the theft charge, then placed Parker on two years of probation. Parker also paid $50,000 in restitution to the Independence Police Department. According to court records, Parker stole ammunition, bottled water, camping equipment, cots, firearms, food, generators, cash and other property from the city of Independence.

Leatherwood v. Welker, 2014 U.S. App. LEXIS 12813 (10th Cir. No. 13-6152, Okla. July 8, 2014). Leatherwood was on probation for sex crimes. His ex-wife called his probation officer, Welker, and told Welker she had personal knowledge that Leatherwood had raped Woods, who was Leatherwood's current girlfriend. Leatherwood's ex-wife also told Welker that Leatherwood might have firearms inside his house and in his truck. The conditions of Leatherwood's probation prohibited him from possessing firearms and committing crimes. A CI also reported that Leatherwood had sent e-mails of a sexual nature to Woods and that Leatherwood had sexual materials in his home. Welker conducted a warrantless search of Leatherwood's home. Leatherwood subsequently sued Welker and the other law enforcement officers, claiming the warrantless search of his house violated the Fourth Amendment. The court held Welker and the other law enforcement officers did not violate the Fourth Amendment because they had reasonable suspicion Leatherwood violated the conditions of his probation. Individuals on probation have a diminished expectation of privacy, and Oklahoma Department of Corrections policy allows warrantless probation searches when there is reasonable suspicion of a probation violation or crime. Here, the court held the tips received by Welker were sufficiently reliable to establish reasonable suspicion. First, Welker knew the identity of Leatherwood's ex-wife and spoke directly with her on the phone. Second, the ex-wife claimed personal knowledge that Leatherwood committed rape, the offense for which he was serving supervised release, and provided the name of Leatherwood's current girlfriend who was the alleged victim. Third, while the content of the allegations in the e-mails came from an anonymous source, Welker knew the assistant district attorney who forwarded the e-mails to her. Finally, the anonymous source claimed he had access to Leatherwood's house, thereby providing a reliable basis of knowledge for the information contained in the e-mails.

Stonecipher v. Valles, 2014 U.S. App. LEXIS 12384 (10th Cir. No. 13-2124, N.M. July 1, 2014). Federal agents working in an undercover capacity purchased a firearm and two explosives from Stonecipher. The agents also confirmed Stonecipher bought and sold firearms, gun parts, and ammunition online without having a federal firearms license. Stonecipher's criminal history showed two "suspended imposition of sentence dispositions" for Missouri domestic violence charges. An AUSA advised the agents that Stonecipher was prohibited from possessing firearms under 18 U.S.C. § 922(g)(9). The agents obtained and served a warrant on Stonecipher's residence. Stonecipher filed a Bivens action against the federal agents claiming a variety of constitutional violations regarding the search of his house and arrest. The district court held the agents were entitled to qualified immunity because they reasonably concluded on the facts available to them that they had probable cause to search Stonecipher's house, arrest and then file charges against him. The court of appeals held the agents did not act in reckless disregard for the truth. The court concluded it was reasonable for a non-legally trained officer to assume a conviction and sentence were two separate things, and that the type of sentence would not invalidate a conviction.

State v. Suady, ___ Kan. ___, ___ P.3d ___ (No. 105603 filed 06/27/14). Suady robbed Kenneth Price and took his vehicle. The Court of Appeals reversed the conviction, holding that robbery was a specific intent crime. The Supreme Court disagreed, and held that the plain language of the robbery statutes creates no requirement of specific intent and requires only a "taking" of property, without distinguishing between "incidental" and intentional taking.

State v. Edwards, ___ Kan. ___, ___ P.3d ___ (No. 106299 filed 06/27/14). According to the plain language of K.S.A. 21-3426, robbery and aggravated robbery are general intent, not specific intent crimes. In order to prove the elements of the crimes, the State need only prove that a defendant took property from the person or presence of another by force or by threat of bodily harm to any person. To the extent that State v. Montgomery, 26 Kan. App. 2d 346, 988 P.2d 258 (1999), is inconsistent with this legislative mandate, it is disapproved.

Felders v. Malcom, 2014 U.S. App. LEXIS 11627 (10th Cir. No. 12-4154, Utah June 20, 2014). Trooper Bairett stopped Felders for speeding. During the stop, Bairett noticed Felders was nervous, and would not maintain eye contact with him. Bairett also smelled the strong odor of air freshener coming from the car and saw a license plate ring with "Jesus" written on it. Based on these observations, Bairett suspected Felders was transporting drugs in her car. After issuing Felders a speeding ticket, Bairett asked to speak to the two passengers in the car. Based on several perceived inconsistencies between the passengers' stories and Felders' story about the details of their trip, Bairett believed he had reasonable suspicion Felders was transporting drugs. After Felders refused to consent to a search of her car, Bairett called for a K-9 unit to bring a drug-sniffing dog. When Deputy Malcolm arrived with his K-9, Duke, Bairett told him about the encounter with Felders and that Bairett believed there was probable cause to search Felders' car for drugs. Bairett then ordered the passengers get out of the car, but he did not let them close the car doors. Bairett's dash camera recorded Malcolm commenting to Bairett, "Nice of them to leave the door open for you," to which Bairett responded, "Yeah it was, wasn't it?" When Malcolm began the dog sniff, Duke jumped into Felders' car through the open rear passenger door and alerted on the center console. Malcolm opened the console and found two bags of jerky. After removing the jerky, the officers searched Felders' car for approximately two-hours, but found no drugs. Felders sued, claiming Bairett and Malcolm violated the Fourth Amendment by illegally searching her car. While the district court held neither officer was entitled to qualified immunity, only Deputy Malcolm appealed. Malcolm argued probable cause existed to search Felders' car before the dog sniff. Alternatively, Malcolm argued if he did not have probable cause to search Felder's car, the law did not clearly establish that his actions during the dog sniff violated the Fourth Amendment. The Tenth Circuit Court of Appeals disagreed and affirmed the district court holding that Malcolm was not entitled to qualified immunity. First, the court held Malcolm did not have probable cause to search Felders' car for drugs prior to conducting the dog sniff. The court ruled Malcolm could not reasonably rely on Bairett's conclusion that probable cause existed to search Felders' car, nor would a reasonable officer in Malcolm's position believe he had probable cause to search for drugs. The court found, at best, Bairett and Malcolm had reasonable suspicion to conduct a Terry stop. Second, the court held Malcolm did not independently establish probable cause to search Felders' car. Malcolm's argument that inconsistencies in Felders' statements to Bairett were lies, which constituted obstruction of justice under Utah law, was not reasonable. Third, the court held at the time of the incident, it was clearly established that facilitation of a dog's entry into a car without probable cause violated the Fourth Amendment. The court found a reasonable jury could conclude Bairett intentionally caused the car doors to remain open to facilitate Duke's entry and that Duke failed to properly alert before entering Felders' car.

Abramski v. United States, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 12-1493, filed 06/16/14). 18 U. S. C. §922(a)(6) imposes criminal penalties on any person who, in connection with a firearm’s acquisition, makes false statements about “any fact material to the lawfulness of the sale.” Abramski, a former police officer, certified he was an actual purchaser of a Glock 19 handgun for his uncle, Angel Alvarez. Abramski thought he could get the gun for a discount by showing his old police identification. The Court held that such a misrepresentation is punishable under the statute, whether or not the true buyer could have purchased the gun without the straw purchaser.

Bond v. United States, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 12-158, filed 06/02/14). Defendant's crime of simple assault, carried out by spreading two toxic chemicals on the victim's car, mailbox, and door knob in hopes that the victim would develop an uncomfortable rash, does not come within the scope of the Chemical Weapons Convention Implementation Act of 1998, which makes it a federal crime for a person to use or possess any chemical weapon. The Third Circuit Court of Appeal's conclusion otherwise is therefore reversed and remanded

Wood v. Moss, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 13-115, filed 05/27/14). Anti-Bush protesters argued their First Amendment rights were violated when the Secret Service moved them farther down the street than supporters of then-President George W. Bush, while he dined on an outdoor patio in Jacksonville, Oregon. The court asserted the agents did not engage in viewpoint-based discrimination and are immune from this type of suit, stating that "safeguarding the President is also of overwhelming importance in our constitutional system."

Commonwealth of Vt. v. Berube, Court and Case No. Unknown, profiled on PoliceOne.com on 6/2/14. From the truth is stranger than fiction file, a woman who approached an officer from behind and used a knife to cut his throat has been acquitted by a jury of an attempted murder charge. Jennifer Berube was acquitted Friday less than two hours after jurors began deliberations. Rutland City Police arrested Berube, along with her husband, John MacLean III, in December 2012 for possessing a stolen credit card. Surveillance footage from the police station’s booking area following the arrest captured Berube sneaking up on Officer Damon Nguyen from behind with a 2-inch blade in her hand. She put her hands around Officer Nguyen’s neck and struggled with him until she was subdued by multiple other officers, according to the report. Officer Nguyen suffered a cut near his jugular vein as a result of the attack. The blade used by Berube was in an inside jacket pocket and was missed when police patted her down. Berube claims she held the knife in an escape attempt, and wanted to scare the officer, not harm him. The jury delivered "not guilty" verdicts for attempted second-degree murder and the lesser charge of attempted aggravated assault with serious bodily injury.

Plumhoff v. Rickard, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 12-1117, filed 05/27/14). The Sixth Circuit denied qualified immunity for force used in 2004 to end a vehicular pursuit that is similar to the force ruled permissible in Scott v. Harris, 550 U.S. 372 (2007). The Sixth Circuit denied qualified immunity by distinguishing Scott "in the details" from the force used three years earlier in this case. For qualified immunity purposes, did the Sixth Circuit err in analyzing whether the force was supported by subsequent case decisions as opposed to prohibited by clearly established law at the time the force was used? On July 18, 2004, West Memphis (Ark.) police stopped a white Honda Accord with only one operating headlight and an “indentation” in the windshield. Officer Joseph Forthman questioned the driver, Donald Rickard, and then asked him to step out of the car. Instead, Rickard — with passenger Kelly Allen in the passenger seat — drove off. A police pursuit began — parts of which three police dash cameras recorded. Officer Vance Plumhoff became the lead vehicle in the chase. Rickard entered the I-40 freeway, crossing from Arkansas into Memphis (Tenn.). During the chase, Rickard sped, veered, and tried to ram Officer Plumhoff’s vehicle and other cars. After exiting the freeway, Rickard hit one of the police cars, spun, and then (according to the police account) turned directly toward Officer Plumhoff’s car and collided head-on. The officers attempted to box in the car with their police vehicles. Rickard reversed and hit another police car and nearly struck an officer. By this time some of the officers were out of their cars with their guns out and were ordering Rickard out of his car. Rickard did not comply and continued to try to drive away. Three of the officers — including Officer Plumhoff — fired at the fleeing car. Rickard then lost control and crashed his car, killing both him and his passenger. The United States Supreme Court unanimously reversed, holding that the circumstances did not present a knowing deprivation by police officers of the decedent's established Fourth Amendment rights.

Stormont-Vail v. Bd. of Commr's of Riley County, Kansas, (Riley County District Court, profiled on KAKE tv 05/14/14). Commissioners in Riley County have agreed to pay an outstanding hospital bill for a driver who was badly injured while fleeing from police. The Manhattan Mercury reports the commission decided to pay $6,300 sought in a lawsuit by Stormont-Vail Healthcare in Topeka, rather than risk a trial. Marysville resident Jason Fisher suffered severe internal injuries in February 2011 when he rolled a pickup truck while being chased by police. Fisher spent two days at Stormont-Vail, which put the cost of his care at nearly $40,000. Riley County's liability was reduced to the Medicaid rate. County officials had questioned the county's liability because Fisher was not in police custody when he was injured.

Tolan v. Cotton, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 13-551, filed 05/05/14)(per curium). In an action under 42 U.S.C. 1983 for excessive force arising out of defendant-police sergeant's shooting of plaintiff, summary judgment for defendant is vacated and remanded, where: 1) the Fifth Circuit erred in concluding that defendant was entitled to qualified immunity at the summary judgment stage; and 2) in holding that defendant's actions did not violate clearly established law, the Fifth Circuit failed to view the evidence at summary judgment in the light most favorable to plaintiff with respect to the central facts of this case. Cotton tried to stop the vehicle after dumb-thumbing the tag entry and receiving an alert the vehicle was stolen. During the early morning hours of New Year’s Eve, 2008, police sergeant Jeffrey Cotton fired three bullets at Robert Tolan; one of those bullets hit its target and punctured Tolan’s right lung. At the time of the shooting, Tolan was unarmed on his parents’ front porch about 15 to 20 feet away from Cotton. Tolan sued, alleging that Cotton had exercised excessive force in violation of the Fourth Amendment. The District Court granted summary judgment to Cotton, and the Fifth Circuit affirmed, reasoning that regardless of whether Cotton used excessive force, he was entitled to qualified immunity because he did not violate any clearly established right. In articulating the factual context of the case, the Fifth Circuit failed to adhere to the axiom that in ruling on a motion for summary judgment, “[t]he evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor.” For that reason, we vacate its decision and remand the case for further proceedings consistent with this opinion.

Paroline v. United States, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 12-8561, filed 04/23/14). The Supreme Court threw out a nearly $3.4 million judgment against a man convicted of possessing two pornographic images of a child that have been seen by thousands of online viewers. The justices held, in a 5-4 ruling, that courts can order people convicted of child pornography to pay restitution to their victims, but only to the extent that there is a strong tie between the victim's losses and the convicts' actions. Federal judges should exercise discretion in awarding restitution. The case involved a woman known as "Amy." Doyle Randall Paroline was held liable by a federal appeals court for the nearly $3.4 million judgment associated with the ongoing Internet trade and viewing of images of Amy being raped by her uncle when she was 8 and 9 years old.

Walden v. Fiore, 568 U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No 12-574, filed 02/25/14). In a tort action filed in Nevada arising out of allegations against a Georgia police officer who searched plaintiffs at a Georgia airport, seized a large amount of cash, and allegedly drafted a false probable cause affidavit in support of the funds' forfeiture, the Ninth Circuit Court of Appeals erred in concluding that the district could exercise personal jurisdiction over defendant, because defendant lacks the "minimal contacts" with Nevada that are a prerequisite to the exercise of jurisdiction over him. The plaintiffs, two professional gamblers, had their carry-on bags -- which contained over $95,000 -- confiscated by DEA agents. The DEA agents thought the large amount of cash indicated involvement in the drug trade. Plaintiffs, heading home to Las Vegas with a layover in Atlanta after a gambling trip to Puerto Rico, explained that they had won the cash gambling. DEA Officer Walden, wasn't convinced and told the plaintiffs that the money would only be returned if they could prove their story. After returning home to Nevada, the plaintiffs gathered the necessary proof, provided it to the DEA, and eventually received their withheld money several months later. The plaintiffs filed suit in Nevada federal court, alleging Officer Walden had violated their Fourth Amendment rights when he confiscated their winnings. State v. Carnoali, Leavenworth County District Court (profiled in KC Star on 01/28/14). A bail bondsman who was, perhaps, a little too eager to catch his quarry pleaded no contest Wednesday to an aggravated assault charge, the Leavenworth County prosecutor said. Edward Carnoali, 67, was standing in the 1400 block of Grand Avenue, sawed-off shotgun in hand, when a Leavenworth officer approached him the evening of Sept. 25. He’s getting away,” Carnoali reportedly said. “Let’s go.” The officer explained that she was there to investigate a shooting report. I shot at him,” Carnoali is said to have replied. “But don’t worry, I missed him.” Carnoali said that his company was responsible for serving a warrant on a man, whom the bondsman suspected was visiting his girlfriend’s home. When the man ran out the back door, Carnoali allegedly fired at him and began yelling. “The victim was later apprehended and said he was in fear of being shot,” Leavenworth County Attorney Todd G. Thompson said in a written statement. The barrel on Carnoali’s shotgun was 19 inches long, one inch longer than the legal minimum, Thompson said. Sentencing for Carnoali was scheduled for March 12.

Eckert v. Hidalgo County and the City of Deming, unknown court, reported on Findlaw on 1/22/14. David Eckert, who was 63 at the time of his arrest in 2013, was subjected to multiple anal cavity searches for concealed drugs following a routine traffic stop. No contraband was found. Deming police sought a search warrant for Eckert because they thought he appeared to be clenching his buttocks when he got out of his car in January 2013, a drug dog indicated on the driver's seat, and they had information from Hidalgo County deputies that Eckert was known for carrying drugs inside his body. Eckert is now set to receive $1.6 million from Hidalgo County and the city of Deming to settle their portion of the lawsuit. The settlement is only a part of the "anal probe" lawsuit resolution. Major parts of Eckert's lawsuit, against the doctors and hospital, are still ongoing.

Distracted Driving

City of San Diego v. Cecilia Abadie, San Diego Traffic Court, profiled on Findlaw on 01/17/14. Abadie was cited for speeding and distracted driving for wearing Google Glass behind the wheel. The San Diego traffic court commissioner dismissed the charges finding insufficient proof that Cecilia Abadie was using her Google Glass while driving. Abadie said that she was indeed wearing the glasses, but that they were in sleep mode and therefore not operating when she was pulled over for speeding.

DL Hearings

Hoeffner v. Kansas Dept. of Revenue, ___ Kan.App.2d ___, ___ P.3d ____ (No. 110323, filed 09/12/14). Dodge City officers improperly coerced Hoeffner into consenting to a (0.215) breath test when they repeatedly advised him that refusal would result in the seeking and issuance of a search warrant for his blood. Hoeffner was not involved in an accident involving death or serious bodily injury, so the officers' threats to get a warrant were empty threats pursuant to State v. Weilert, 43 Kan. App. 2d 403, 410, 225 P.3d 767 (2010) (applying K.S.A. 8-1001[d][3]), and Cook v. Olathe Medical Center, Inc., 773 F. Supp. 2d 990, 1002 (D. Kan. 2011) (same). However, suppression does not apply to administrative hearings and the test results reflecting that Hoeffner had an alcohol concentration of .08 or greater in his blood were admissible in both administrative and court proceedings relating to the suspension of his driver's license. As such, we find substantial competent evidence supports the district court's decision to uphold the suspension of Hoeffner's license.

Manzano v. Kansas Dept. of Revenue, ___ Kan.App.2d ___, ___ P.3d ____ (No. 108861, filed 05/09/14//14). Police stopped Manzano after he squealed his tires leaving a stop sign. Manzano showed signs of intoxification, but refused a breath test and was suspended. The KDOR granted Manzano a hearing, but the hearing officer only allowed 10 minutes and cut off Manzano's counsel from questioning about events leading up to the stop. The district court held the administrative hearing was "a farce," and reversed the suspension. The Court of Appeals affirmed. Powell, J., dissents. Noting that after being read Miranda warnings and asked if he understood those rights, or whether he would take a breath test, Manzano's response to officers both times was"Fuck you." Additionally, he stipulated to the facts in his criminal diversion. Kansas law mandates that Manzano's driver's license be suspended for 1 year. Because the majority holds otherwise, I dissent.

Domestics

State v. Gordon, ___ Kan.App.2d ___, ___ P.3d ____ (No. 110470, filed 11/14/14). Gordon pled to an aggravated battery of his live-in girlfriend. The prosecutor then asked for the judge to apply the domestic violence tag to the case. If the offense is determined to be one of domestic violence, the case receives a special domestic violence designation. K.S.A. 2013 Supp. 22-4616(a)(1). Application of this domestic violence designation to a particular case results in a court order that the defendant complete a domestic violence offender assessment and follow its recommendations as part of his or her sentence. K.S.A. 2013 Supp. 21-6604(p). However, the statute provides an exception to this rule if the court finds on the record that the defendant "has not previously committed a domestic violence offense" and the current offense "was not used to coerce, control, punish, intimidate or take revenge against a person with whom the offender is involved." K.S.A. 2013 Supp. 22-4616(a)(2)(A), (B). There is an exception that may prevent a case from receiving a domestic violence designation. If the district court finds on the record that the defendant has never before committed or entered into a diversion for a domestic violence offense and that the offense in question was not used "to coerce, control, punish, intimidate, or take revenge against a person with whom the offender is involved or has been involved in a dating relationship or against a family or household member," the court shall not apply the designation. K.S.A. 2013 Supp. 22-4616(a)(2). Gordon objected to the designation, arguing that the district court was required to make findings on the record that the exception did not apply before applying the designation. The Court of Appeals disagreed. Once an initial determination that an offense is a domestic violence offense, the application of the domestic violence designation is the default and can only be lifted if the district court explicitly finds "on the record" that the two conditions set out in K.S.A. 2013 Supp. 22-4616(a)(2) have been satisfied. Without those findings, the designation stands, and the offender is subject to the domestic violence assessment as set out in K.S.A. 2013 Supp. 21-6604(p).

United States v. v. Castleman, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 12-1371, filed 03/26/14). Defendant's prior conviction for "intentionally or knowingly causing bodily injury to" the mother of his child does qualify as a misdemeanor crime of domestic violence" for purposes of defendant's indictment under 18 U.S.C. section 922(g)(9), which forbids the possession of firearms by anyone convicted of a "misdemeanor crime of domestic violence," and the Sixth Circuit erred in concluding otherwise.

Drugs

State v. Castleberry, ___ Kan. ___, ___ P.3d ___ (No. 106600, filed 12/24/14), affirming 48 Kan. App. 2d 469, 293 P.3d 757 (2013). Emporia cops arranged a methamphetamine purchase between a CI and Castleberry, and the CI called from the Emporia Police Department to arrange the sale. Once the sale was completed, officers attempted to stop Castleberry, but he fled and led officers on a 45-minute, high-speed chase through residential and rural areas of Lyon County. During the chase, Castleberry disobeyed several stop signs and traffic signals, while driving at speeds ranging from approximately 45 miles per hour to 120 miles per hour. On appeal, Castleberry complains the State failed to establish that venue because the State failed to present sufficient evidence from which a rational jury could infer that Castleberry was physically present in Lyon County during his telephone conversations with the CI. The Supreme Court held it did not matter, since the evidence established the CI called from the Emporia Police Department. As to the court's failure to instruct the jury on"moving violations," to establish felony eluding, the Court held it did not matter, because engaging in reckless driving or committing five or more moving violations are "options within means," rather than alternative means. Accordingly, the State was not required to prove both reckless driving and the commission of five or more moving violations. Therefore, it was not clearly erroneous to fail to instruct upon the definition of a moving violation in this case because ample evidence supported one of the options within a means—reckless driving—upon which the jury was instructed.

DUI

City of Wichita v. Molitor, 46 Kan. App. 2d 958, 959, 268 P.3d 498 (2012), reversed, ___ Kan. ___ (No. 104940, filed 01/30/15). Officers saw Molitor come out of a bar about 2300 hours. They stopped him for failing to signal a turn. While stopping, Molitor ran over and parked on a curb. Officers noticed usual indicators of intoxication. Molitor exhibited 6/6 clues on the Horizontal Gaze Nystagmus (HGN) test. He showed 1/4 on the one leg stand (OLS). The preliminary breath test (PBT) was 0.09 and the breath test was 0.091. Molitor argues that it was error for the district court to consider evidence of HGN test in determining whether a police officer had reasonable suspicion to request that he submit to a PBT. The Court of Appeals held it was appropriate for the district court to consider the results of the HGN test administered to Molitor as part of its reasonable suspicion analysis under K.S.A 2010 Supp. 8-1012(b). Because reasonable suspicion is a less demanding standard than probable cause and requires a showing considerably less than a preponderance of the evidence, it found that HGN test results may, under appropriate circumstances, be considered as part of the totality of the circumstances in determining whether a law enforcement officer has reasonable suspicion to request a PBT. It also held that even without the HGN evidence, there was reasonable suspicion for the police officer to believe that Molitor had been operating a vehicle under the influence of alcohol and affirmed. The Supreme Court reversed on both grounds. "[A]t this point in the state of Kansas, the HGN test has no more credibility than a Ouija Board or a Magic 8 Ball. To change that circumstance, the State needs to prove the legitimacy of the test, as Witte directed."

State v. Theurer, ___ Kan.App.2d ___, ___ P.3d ____ (No. 110130, filed 11/21/14). While driving under the influence of alcohol, Miles E. Theurer caused a head-on collision which killed Elizabeth Young and Michael Stanley. In keeping with a plea agreement, Theurer pled no contest to two counts of involuntary manslaughter while driving under the influence of alcohol. Under the Revised Kansas Sentencing Guidelines Act (RKSGA), K.S.A. 2013 Supp. 21-6801 et seq., the district court was required to impose presumptive sentences of imprisonment. Instead, the district court sentenced Theurer to two concurrent 41-month sentences but granted his motion for dispositional departure sentences. As a result, Theurer was not imprisoned but was granted 36 months of probation while under house arrest with special conditions, including serving 60 days in jail. The sentencing court erred in four aspects when it granted Theurer's motion for dispositional departure sentences. First, as a general matter, the sentencing court based its sentencing decision on an error of law by applying an incorrect legal standard. Second, the overriding factor articulated by the sentencing court for granting a departure in this case—that the defendant is an exceptional person with the potential to provide a great benefit to society—is not a substantial and compelling reason to grant departure sentences. Third, some of the sentencing court's other articulated reasons for granting departure sentences were not supported by substantial competent evidence. Fourth, those reasons enunciated by the sentencing court which were supported by substantial competent evidence, when considered together, did not provide a substantial and compelling reason to grant departure sentences given the circumstances of this involuntary manslaughter case. "[T]he Kansas Legislature has repeatedly and consistently focused its attention on punishing intoxicated drivers due to the dangers they pose on Kansas highways."

granting departure sentences were not supported by substantial competent evidence.

State v. Reese, ___ Kan. ___, ___ P.3d ___ (No. 106703, filed 08/29/14), reversing 48 Kan. App. 2d 87, 283 P.3d 233 (2012). Reese was arrested for his fifth DUI on July 3, 2009, but he was not convicted of the offense until June 6, 2011. His sentencing was scheduled for August 10, 2011. All prior DUI convictions occurred before July 1, 2001. Reese alleged he should be sentenced as a first offender. The Supreme Court agreed. It held that K.S.A. 2011 Supp. 8-1567(j)(3) provides that the sentencing court is to take into account only those prior driving under the influence (DUI) convictions that occurred on or after July 1, 2001, and make the determination at the time of sentencing whether the current conviction is a first, second, third, fourth, or subsequent offense for purposes of imposing a sentence enhancement. Accordingly, the provisions of K.S.A. 2011 Supp. 8-1567(j)(3) apply to all persons who are sentenced for DUI on or after the July 1, 2011,effective date of the amended statute.

City of Dodge City v. Webb, 50 Kan. App. 2d __, 329 P.3d 515, 522 (2014), petition for rev. filed July 9, 2014 (No. 109634, filed 06/13/14). Webb, a two-time DUI offender, argued K.S.A. 2011 Supp. 8-1012(b) was unconstitutional because it allows an officer to request a PBT upon reasonable suspicion—rather than probable cause—that the driver was operating a vehicle while under the influence of alcohol or drugs or both. He further claimed that without the illegal PBT, the officer did not have probable cause to arrest him for DUI. The Court of Appeals rejected these arguments and held that because the officer had probable cause without the PBT results, and because the officer had legal justification for threatening to obtain a search warrant after Webb's initial refusal to take the breathalyzer test, Webb was not improperly coerced into ultimately submitting to the breathalyzer test. A Dodge City officer stopped Webb's vehicle for a tag light violation. The officer noted the odor of an alcoholic beverage, but could not tell if it was coming from the driver (Webb, who denied drinking) or the passengers (who admitted drinking). After getting Webb out of the vehicle, the officer noted a moderate odor coming from him and Webb then admitted to drinking one beer. Webb displayed four out of eight clues of impairment on the walk-and-turn test and three out of four clues of impairment on the one-leg-stand test. A PBT indicated 0.127, and a breath test 0.125. Webb then admitted to six beers, not one. The Court held there was probable cause independent of the PBT, so it need not determine the constitutionality of K.S.A. 8-1012. Further, because the officer was legally entitled to seek a warrant in order to obtain a sample of Webb's blood after he had refused to submit to a breathalyzer test, there was no impermissible coercion. While the statute used to prohibit further testing after a refusal, it no longer does.

State v. DeClerck, ___ Kan.App.2d ___, ___ P.3d ____ (No. 109759, filed 02/07/14, pet. for review filed 03/06/14). K.S.A. 2011 Supp. 8-1001(b)(2) is unconstitutional to the extent it requires a search and seizure absent probable cause that the person was operating or attempting to operate a vehicle under the influence of drugs or alcohol. A traffic infraction, plus an injury or fatality, without more, does not constitute probable cause that drugs or alcohol were involved in the accident. A trooper began investigating a fatality accident, and had TPD officer Yancy force a blood draw despite the driver's refusal. The Court of Appeals upheld the district court's decision granting DeClerck's motion to suppress.

K.S.A. 2011 Supp. 8-1001(b)(2) is unconstitutional to the extent it requires a search and seizure absent probable cause the person was operating or attempting to operate a vehicle under the influence of drugs or alcohol. We are acutely aware the statute in question attempts to address the terrible toll impaired drivers inflict on our state's highways, but we are reminded of the "truism that constitutional protections have costs." Coy v. Iowa, 487 U.S. 1012, 1020, 108 S. Ct. 2798, 101 L. Ed. 2d 857 (1988). While the State does have a significant interest in preventing accidents involving drugs and alcohol on the road, K.S.A. 2011 Supp. 8-1001(b)(2) does not further that interest. See Hannoy, 789 N.E.2d at 984 (special needs exception inapplicable where search performed by law enforcement or for law enforcement purposes); McDuff, 763 So. 2d at 855 (statute with public safety and law enforcement purpose does not fall within special needs exception); see also State v. Childs, 275 Kan. 338, 347, 64 P.3d 389 (2003) (exclusive sanction for highly regulated business refusing entry to law enforcement is license revocation). A traffic infraction plus an injury or fatality, without more, does not constitute probable cause that drugs or alcohol were involved in the accident.

State v. Tims, 49 Kan. App. 2d 845, 317 P.3d 115 (2014) (No. 109472, filed 01/03/14), affirmed in part and vacated in part, State v. Tims, ___ Kan. ___, ___ P.3d ___ (No. 109472, filed 08/14/15). Tims, a long-time drinker and driver, had a 2002 DUI diversion in Topeka and a 2004 DUI conviction. He was convicted again in 2012. He alleged his 2002 diversion should not count. The district court agreed and sentenced him as a 2nd offender. The state appealed. The Court of Appeals reversed. State v. Hughes, 290 Kan. 159, 169, 224 P.3d 1149 (2010), and In re Habeas Corpus Application of Gilchrist, 238 Kan. 202, 209, 708 P.2d 977 (1985), do not require judicial certification of a right to counsel waiver contained in a DUI diversion agreement. Formation of the diversion contract does not involve the adjudication of the defendant's guilt or innocence before the municipal court, so Hughes & Gilchrist do not apply nor require a judicial finding.

Employment

McDonald v. Wise, ___ F.3d ___ (10th Cir. No. 13-1211, filed 10/28/14). The Tenth Circuit considered whether a name-clearing hearing held by the Colorado Department of Labor satisfied a terminated employee's right to due process. Wayne McDonald, an employee with the City of Denver, was notified by the City that another employee alleged he had sexually harassed her. When McDonald refused to resign, he was terminated. The City later informed news reporters that McDonald had been terminated because of "serious allegations of misconduct." The City objected to McDonald receiving unemployment benefits and, consequently, McDonald participated in a hearing before the Colorado Department of Labor, during which he was provided an opportunity to explain his side of the story. When McDonald was unable to secure other employment, he brought suit against the City under 42 U.S.C. § 1983, alleging, among other things, that the City violated his liberty interest in his good name without providing him a name-clearing hearing. The district court granted the City's motion to dismiss, which McDonald appealed to the Tenth Circuit. The Tenth Circuit considered whether McDonald's hearing in front of the Department of Labor provided him with adequate due process. Ultimately, the court determined that "the depriving governmental entity is generally responsible for the provision of due process." Because the City, not the Department of Labor, was responsible for issuing the stigmatizing statements about McDonald, the court held that McDonald's hearing did not provide him with adequate due process and the district court had erred in dismissing the claim. The court did note, however, that it was conceivable in other circumstances that due process could be satisfied by a hearing held by another entity, noting "the importance of a name-clearing hearing being comparably as public as the stigmatizing statement in order to be effective."

Marquez v. Kansas Department of Corrections, ___ Kan.App.2d ___, ___ P.3d ____ (No. 111327, filed 8/29/14). A permanent state employee cannot be suspended without first being counseled about his work performance deficiencies. Tony Marquez was a parole officer with the Kansas Department of Corrections. In 2010, Marquez acted as parole officer for an inmate who was previously incarcerated for domestic abuse. During his parole, the inmate tested positive for marijuana use and was accused of domestic abuse, among other things. Based on a review of the inmate's parole file, Marquez's supervisors determined that he should be suspended 10 days "for the good of the service." The Kansas Civil Service Board affirmed the suspension, which was approved by the district court. Marquez then appealed to the Kansas Court of Appeals. The primary issue on appeal involved interpreting two sections of the Kansas Civil Service Act, K.S.A. 75-2949e. Section (b) states that prior to suspending a permanent employee for work deficiencies, the employee must have received two performance evaluations in the previous 180 days, unless "the good of the service" requires otherwise. Section (c) provides that if an employer wants to suspend an employee who has not received the necessary performance evaluations, it must show that "the employee was adequately counseled concerning the nature of the deficiencies in work performance and concerning what was expected of the employee in correcting the deficiencies." In suspending Marquez, the Department of Corrections relied on the phrase "good of the service," in section (b), which it claimed allowed it to bypass the performance evaluation requirement. The Court of Appeals disagreed, explaining that section (c) clarifies that if an employer want to impose a suspension without using performance evaluations, it still must show the employee was "adequately counseled." Because the Kansas Civil Service Board made no finding of fact as to whether Marquez had been adequately counseled, the court held that the standards of Kansas Civil Service Act had been erroneously applied, and reversed the decision.

Holmes v. Kansas City Missouri, Court and Case No. unknown, reported in the KC Star on 7/17/14. The Kansas City Council on Thursday agreed to settle the seventh of eight discrimination lawsuits that were related to a 2011 reorganization of the city prosecutor’s office. The latest settlement was for $500,000 with former Assistant City Prosecutor Cynthia Holmes, and brings the total taxpayer outlay to nearly $2 million for the seven lawsuits. One remaining case is set for trial in September. The eight related lawsuits stem from a decision to convert the Kansas City municipal prosecutor’s office from 16 part-time prosecutors to eight full-time prosecutors. City officials say the move helped make the department more professional and efficient as Municipal Court switched to a computerized, paperless system. But eight attorneys who had worked for years as part-time prosecutors filed lawsuits. They had all applied for the new full-time jobs but were not selected. They alleged age, gender and/or race discrimination because several younger, less-experienced lawyers were hired. Holmes was a part-time assistant city prosecutor for more than 20 years. The Law Department recommended settling her lawsuit for $500,000, saying a jury might have found the city to have considered her age as a factor in its hiring decision, based on the age of the women selected, which would be a violation of the Missouri Human Rights Act.

LAPD Recruits v. LAPD, (actual case name and number unknown - Profiled in Police Magazine on 7/11/14). A judge Thursday upheld a jury’s award of more than $2 million apiece to five former Los Angeles police recruits who were denied the temporary city jobs they sought while recovering from injuries suffered during training at the police academy. Los Angeles Superior Court Judge Frederick Shaller denied motions by the City Attorney’s Office to either issue a judgment in the city’s favor despite the verdicts or to grant a new trial. The City Attorney’s Office argued that the verdicts were not supported by the evidence. Shaller disagreed. Shaller also found that the amount of the damages awarded May 5 to former recruits Anthony Lee, Ryan Atkins, Douglas Boss, Justin Desmond and Eriberto Orea was not excessive. Atkins and Desmond were both awarded more than $2.6 million. Boss received $2.5 million, Lee $2.28 million and Orea $2.17 million. The majority portion of most of the money awarded the five was for lost future wages.

Denning v. The Johnson County Sheriff's Civil Service Board, ___ Kan. ___, ___ P.3d ___ (No. 104308, filed 07/11/14), affirming 46 Kan. App. 2d 688, 266 P.3d 557 (2011). Deputy Michael Mauerer was terminated after lying about how a patrol car windshield was broken. Mauerer and another deputy were returning from Topeka when Mauerer tried to kill a fly with a notebook and cracked the windshield. He initially indicated the windshield was cracked by a rock. A first civil service board reversed the sheriff's decision. Denning appealed. The district court reversed the civil service board and remanded for rehearing. The second civil service board affirmed the sheriff's decision. The Court of Appeals affirmed. Mauerer argued that his reports were merely "incomplete—not untruthful." The Court of Appeals disagreed, stating that leaving out critical facts is a violation of the department's truthfulness policy. It held there was substantial competent evidence to support the board's decision. Leben dissents and would have affirmed the first board.

          The Supreme Court affirmed. It agreed with Maurer that the CSB had jurisdiction to receive and consider evidence for and against a dismissal in determining the reasonableness of the sheriff's personnel decision, to approve or disapprove of the sheriff's decision, and to make appropriate orders based on its findings and conclusions. It rejected Denning's argument that the CSB either had no authority, or had only limited authority, to review his personnel decision. However, it ultimately held that lying was a adequate reason for termination. : "Half truths are untruths if they infer a conclusion different from what would have been concluded had the whole truth been told." 46 Kan. App. 2d at 701. Johnson, J., dissented, concluding this was a reversal of a decision that the majority does not like, and constitutes substituting the Court's judgement for that of the CSB.

FLSA

Intergrity Staffing Solutions, Inc. v. Busk, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 13–433 filed 12/09/14). Petitioner Integrity Staffing Solutions, Inc., required its hourly warehouse workers, who retrieved products from warehouse shelves and packaged them for delivery to Amazon.com customers, to undergo a security screening before leaving the warehouse each day. Respondents, former employees, sued the company alleging, as relevant here, that they were entitled to compensation under the Fair Labor Standards Act of 1938 (FLSA) for the roughly 25 minutes each day that they spent waiting to undergo and undergoing those screenings. They also alleged that the company could have reduced that time to a de minimis amount by adding screeners or staggering shift terminations and that the screenings were conducted to prevent employee theft and, thus, for the sole benefit of the employers and their customers. The District Court dismissed the complaint for failure to state a claim, holding that the screenings were not integral and indispensable to the employees’ principal activities but were instead postliminary and noncompensable. The U. S. Court of Appeals for the Ninth Circuit reversed in relevant part, asserting that postshift activities that would ordinarily be classified as noncompensable postliminary activities are compensable as integral and indispensable to an employee’s principal activities if the postshift activities are necessary to the principal work and performed for the employer’s benefit. The United States Supreme Court held the time that respondents spent waiting to undergo and undergoing security screenings is not compensable under the FLSA.

FOIA/KORA

Unknown Superior Court Case in New Jersey, (profiled on Policemag.com 10/14/14). Videos routinely captured by cameras mounted in police cars during traffic stops and other law enforcement activities are public records and cannot be withheld because they pertain to criminal or internal affairs investigations, a New Jersey state judge has ruled in two separate cases. The rulings, handed down Friday by state Superior Court Judge Vincent Grasso in Ocean County, came a month after Gov. Chris Christie signed legislation requiring all new police vehicles used primarily for traffic enforcement to be equipped with dashboard cameras, NJ.com reports.

The New York Times v. United States Dept. of Justice, ___ F.3d ___ (2nd Cir. No. 13-422-cv, filed 04/21/14). Plaintiff sought FOIA information on drone strikes. Defendants lodged a variety of reasons for denial and were granted summary judgment in a suit seeking the records. The 2nd Circuit affirmed in part and reversed concluding that (1) a redacted version of the OLC-DOD Memorandum must be disclosed, (2) a redacted version of the classified Vaughn index (described below) submitted by OLC must be disclosed, (3) [redacted], (4) the Glomar and “no number, no 1 list” responses are insufficiently justified, (5) DOD and CIA must submit Vaughn indices to the District Court for in camera inspection and determination of appropriate disclosure and appropriate redaction, and (6) the OIP search was sufficient.

Forfeiture

State v. $17,023 In U.S. Currency (more or less), ___ Kan.App.2d ___, ___ P.3d ____ (No. 111048, filed 07/03/14). The state waited five months before filing its notice of forfeiture. The district court dismissed the action holding the state failed to comply with "the 90-day rule." The Court of Appeals reversed. The failure of the seizing agency to file a notice of pending forfeiture within 90 days of the seizure of property under the Kansas Standard Asset Seizure and Forfeiture

Act, K.S.A. 60-4101 et seq., does not deprive the district court of jurisdiction over the forfeiture action. But property seized for forfeiture must, upon request, be released to the owner or interest holder when the State fails to act within 90 days of the seizure by filing a notice of pending forfeiture or a judicial forfeiture action. K.S.A. 2013 Supp. 60-4109(a)(1).

Kaley v. United States, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 12-464, filed 02/25/14). When challenging the legality of a 21 U.S.C. section 853(e)(1) pre-trial asset seizure, a criminal defendant who has been indicted is not constitutionally entitled to contest a grand jury's determination of probable cause to believe the defendant committed the crimes charged.

Interrogation

State v. Fernandez-Torres, ___ Kan.App.2d ___, ___ P.3d ____ (No. 110645, filed 09/26/14). Lawrence detectives interrogated the suspect in a non-custodial interview about his indecent liberties with a 7-year old girl. They used a Spanish-speaking parole officer to translate, but the translation was inaccurate and incomplete at times. The State sought interlocutory review of the district court's order suppressing inculpatory statements. The district court found the circumstances of the interrogation rendered the statements involuntary, including problems with the Spanish-language translation, the officer's false representations about evidence supposedly implicating Fernandez (telling the suspect a doctor found his skin cells on the victim's vagina), and the officer's poorly translated suggestion that some sort of momentary though improper touching of the girl could be dealt with. The Court of Appeals affirmed, finding the record evidence supports the district court's factual findings.

State v. Garcia-Barron, ___ Kan.App.2d ___, ___ P.3d ____ (No. 109005, filed 07/03/14). Wichita officers were called to investigate a sexual assault. The suspect was interviewed in Spanish by a Spanish-speaking officer and confessed to sexual intercourse with a 15-year old girl. Defendant claims his rights were violated because he did not have an appointed interpreter pursuant to K.S.A. 75-4351. The Court of Appeals held that it did not matter, because the confession was voluntary. Failure to appoint an interpreter pursuant to K.S.A. 75-4351 et seq. does not, standing alone, render a defendant's statement involuntary. It is one factor that a court should consider when determining, from the totality of the circumstances. Suppression of a defendant's confession is not available as a remedy if that confession was freely, knowingly, and voluntarily made after a valid waiver of the defendant's Miranda rights. The interview here was only 10 minutes long, the suspect was not handcuffed and did not ask for anything, nor did he complaint of discomfort or duress. The waiver was adequately explained and the waiver was valid and not coerced.

United States v. Augustine, 2014 U.S. App. LEXIS 2976 (10th Cir. No. 12-3269, Kan. Feb. 19, 2014). Police officers established probable cause to obtain a warrant to search Augustine's residence for evidence of methamphetamine distribution. After being advised of his Miranda rights, Augustine agreed to be interviewed by two police officers without an attorney. At the beginning of the interview, Augustine told the officers he was not under the influence of alcohol or drugs; however, Augustine admitted he took a variety of prescription medications. Throughout the interview, Augustine indicated a desire to take his prescription medications, but he never told the officers that he could not or would not continue the interview without his medication. During the interview, Augustine made several incriminating statements. The government convicted Augustine on two counts of conspiracy to distribute methamphetamine. Augustine argued the search warrant affidavit did not establish probable cause to search his residence and his ability to properly waive his Miranda rights was impaired because he was under the influence of controlled substances during his interview with the police officers. Without deciding whether the search warrant application established probable cause, the court held the application established a minimal nexus between Augustine's residence and the drug-related items being sought in the warrant. Consequently, the court concluded the good-faith exception to the exclusionary rule applied. The court noted drug or alcohol use, by itself, is not enough to overcome evidence showing the defendant was sufficiently in touch with reality so he knew his rights and the consequences of waiving them. Here, the video recording of Augustine's interview and the testimonies of the interrogating officers did not establish that Augustine was so impaired that his waiver of his Miranda rights was invalid. In addition, even though Augustine may have been more comfortable with his medication, the absence of his medication did not cause Augustine to proceed with the interrogation involuntarily or in ignorance of the consequences of his actions or statements.

Jury Instructions

State v. Roeder, ___ Kan. ___, ___ P.3d ___ (No. 104520, filed 10/24/14). Roeder shot and killed Dr. George Tiller to prevent the Wichita doctor from performing any further abortions. He claimed, among other things, the district court erroneously denied his requested instruction on voluntary manslaughter based upon an imperfect defense-of-others; by failing to instruct on the necessity defense; by denying his requested second-degree murder instruction and defense-of-others instruction. The Court affirmed Roeder's convictions, finding he was not denied a fair trial. Where the defendant testified that he intentionally killed a specific person after having premeditated the murder for approximately 16 years, any error by the district court in refusing to give a lesser included offense instruction on second-degree murder based upon the killing being an instantaneous act was harmless beyond a reasonable doubt. Also, a perfect defense-of-others claim is not objectively reasonable where the perceived harm to be prevented will not occur until sometime in the future, i.e., where the other's unlawful use of force against a third person is not imminent.

State v. Waller, ___ Kan. ___, ___ P.3d ___ (No. 106102, filed 06/06/14). Waller and someone else robbed and killed someone. He was convicted of felony murder, but alleged the trial court should have given several lesser included offense instructions. The Supreme Court disagreed, based on the 2013 amendment to K.S.A. 21-5402 stating that felony murder did not have any lesser includeds, and it applies retroactively to Waller's 2010 crimes. Because it is a procedural rule, it does not violate Waller's rights under the Ex Post Facto Clause.

Labor

Sandifer v. United States Steel Corp., ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 12-417, filed 01/27/14). Summary judgment to defendant-employer in a putative collective action under the Fair Labor Standards Act of 1938, seeking backpay for time spent donning and doffing pieces of protective gear that they assert defendant-employer requires workers to wear because of hazards at its steel plants is affirmed, where: 1) 29 U. S. C. section 203(o) allows parties to collectively bargain over whether time spent in changing clothes at the beginning or end of each workday must be compensated; and 2) the time plaintiffs spend donning and doffing their protective gear is not compensable by operation of section 203(o) because it qualifies as "changing clothes" under that section.

Miscellaneous

Burwell v. Hobby Lobby, Inc., ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ and Conestoga Wood Specialties Corp. v. Burwell, (No. 13-354, filed 06/30/14). Christian business owners with religious objections to certain forms of birth control may refuse to provide their employees with insurance coverage for contraceptives. Requiring them to provide such coverage violates their religious freedoms under RFRA, 42 U. S. C. §2000bb et seq. In a 5-4 ruling, the justices decided the religious rights of these company owners trump the rights of female employees to receive the full contraceptive coverage promised by the law.

Noel Canning v. NLRB, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 12-1281, filed 06/26/14). Obama's recess appointments to the NLRB are invalid. The issue in the case is whether the U.S. Senate was in recess on January 4, 2012, when President Obama made three recess appointments to the NLRB of Sharon Block, Terry Flynn and Richard Griffin. The Senate had been meeting in "pro forma" sessions every three business delays, but was not conducting business. On that basis the President considered the Senate to be in recess and exercised his power to make recess appointments. He was wrong and his appointments were invalid.

Search & Seizure

State v. Julian, 300 Kan. 690, 333 P.3d 172 (2014) (No. 105695, filed 09/05/14), overruled by State v. James). In January 2010, a Rice County Deputy stopped Julian for driving a vehicle with a defective headlight, and arrested him for no proof of insurance. Just after the stop, the deputy noticed Julian making "furtive movements." He found a gun and drugs on Julian and drugs in his car. The district court supressed all the evidence. The Court of Appeals reversed. The Supreme Court affirmed the suppression. K.S.A. 22-2501 governed warrantless searches incident to arrest in Kansas at the time of this vehicle search. The statute set forth the permissible circumstances, purposes, and scope of such searches, and a warrantless search of a vehicle for evidence incident to arrest was not authorized and therefore was illegal. The Court of Appeals erred by relying on Fourth Amendment case law rather than the Kansas statute governing searches incident to arrest.

State v. Wilburn, ___ Kan.App.2d ___, ___ P.3d ____ (No. 110250, filed 08/15/14). The facts of this case are "a pit full of snakes that are swirling around with one another" combined with "a law school final in criminal procedure." But Dets. Pierce and Jordan were sent to investigate a fraud at Barnes and Noble, and stumbled on to an unrelated California theft and identity theft ring. Pierce stopped Wilburn and his buddy due to a "puppy dog look," when the detectives arrived at Oak Park Mall. Wilburn moved to suppress all the evidence alleging the stop was not supported by reasonable suspicion. Judges Bennett and Welch agreed and suppressed all the evidence. The Court of Appeals affirmed, holding that a puppy dog look was a mere hunch and not reasonable suspicion.

Riley v. California & United States v. Wurie, 573 U.S. ___, 134 S. Ct. 2473, 189 L. Ed. 2d 430 (No. 13–132 & 13-212, filed 06/25/14). Police may not conduct warrantless searches of cell phones incident to the arrest of the owner. "Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple—get a warrant." Riley was stopped for a traffic violation, which eventually led to his arrest on weapons charges. An officer searching Riley incident to the arrest seized a cell phone from Riley’s pants pocket. The officer accessed information on the phone and noticed the repeated use of a term associated with a street gang, CK or Crip Killers, a term used by Blood gang members. At the police station two hours later, a detective specializing in gangs further examined the phone’s digital contents. Based in part on photographs and videos that the detective found, the State charged Riley in connection with a shooting that had occurred a few weeks earlier and sought an enhanced sentence based on Riley’s gang membership. Riley moved to suppress all evidence that the police had obtained from his cell phone. Wurie was arrested after police observed him participate in an apparent drug sale. At the police station, the officers seized a cell phone from Wurie’s person and noticed that the phone was receiving multiple calls from a source identified as "my house" on its external screen. The officers opened the phone, accessed its call log, determined the number associated with the "my house" label, and traced that number to what they suspected was Wurie’s apartment. They secured a search warrant and found 215 grams of crack cocaine, marijuana, drug paraphernalia, a firearm and ammunition, and cash in the ensuing search. Wurie was then charged with drug and firearm offenses. The United States Supreme Court held that both warrantless searches violated the Fourth Amendment. Balancing the degree such a search intrudes upon an individual’s privacy and the degree to which it is needed for the promotion of legitimate governmental interests, the Court held the balance clearly favors an individual's right to privacy. The traditional reasons to allow search incident to arrest; harm to officers and destruction of evidence are not implicated by when the target of the search is digital data on a cell phone. "The term 'cell phone' is itself misleading shorthand; many of these devices are in fact minicomputers that also happen to have the capacity to be used as a telephone. They could just as easily be called cameras, video players, rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps, or newspapers." A search of the wide variety of information on a cell phone bears little resemblance to the type of brief physical search of items on the person of an arrestee considered in past cases. Remote wiping and data encryption are speculative risks to the concern for disappearance of evidence. If police are truly confronted with a ‘now or never’ situation, they may be able to rely on exigent circumstances to search the phone immediately.

United States v. Davis, ___ F.3d ___ (11th Cir. No. 12-12928, filed 06/11/14) reh'g en banc granted 09/04/14. Admission of location evidence based on stored cell site information obtained by the prosecution without a warrant violated the Defendant's Fourth Amendment rights. The prosecution obtained site information showing that Davis was at or near the scene of several robberies. The evidence was obtained not by warrant under 18 U.S.C. § 2703 subsection (c)(A), but by order under subsection (d). That section does not require probable cause, but only a showing “that there are reasonable grounds to believe that the . . . records or other information sought, are relevant and material to an ongoing criminal investigation.” 18 U.S.C. § 2703(d). However, the Court applied the Leon exception and held that admission of the evidence was not reversible error.

State v. Pettay, ___ Kan. ___, ___ P.3d ___ (No. 107673, filed 06/06/14). The Kansas Supreme Court finally definitively answered whether the good faith exception would save a search later declared illegal by Arizona v. Gant, and held it would not. Pettay was stopped for a traffic violation, arrested for a suspended license, and his car was searched incident to his arrest and drugs were found therein 2 days before the Gant decision. The state conceded the search was unlawful under Gant and Henning, and the Court viewed the only question as whether the appropriate remedy was to suppress the illegally seized evidence. Adopting a very narrow reading of immediate presence in K.S.A. 22-2501 as it existed at the time, the Court said that after "Conn and Anderson, a law enforcement officer conducting a search incident to arrest could not objectively reasonably rely on federal caselaw to enlarge the physical scope set out in K.S.A. 22-2501 beyond the statute's plain language, which limited the search to the subject's "immediate presence." The Court placed great weight on the fact that Pettay was handcuffed and secured in a patrol car at the time of the search.

State v. Powell, ___ Kan. ___, ___ P.3d ___ (No. 102749, filed 06/06/14, reversing State v. Powell, 45 Kan. App. 2d 1090, 257 P.3d 1244 (2011). Powell stole and damaged a police car and other property. Police obtained a warrant to collect blood and tissue from Powell, but failed to mention in their search warrant affidavit that blood and tissue were found in the police car. Powell tried to have DNA match testimony excluded, but the Court rejected his attempts, holding the Leon good faith exception applied because police actually obtained a warrant. The Supremes reversed, holding the warrant was deficient because it failed to establish a nexus between the evidence sought (the biological material identified) and that evidence's ability to aid in the apprehension or conviction of the crime's perpetrators. The application did not clearly identify the crime alleged. nor explain how the biological material sought would aid in prosecuting the crime. The Court found the omission "especially troublesome given that the evidence sought from Powell involved intrusions beyond the human body's surface without any justification alleged in the warrant for that intrusion."

State v. Keenan, ___ Kan.App.2d ___, ___ P.3d ____ (No. 108550 filed 05/30/14, pet. for rev. filed 6/27/14). A Lenexa officer was dispatched to Keenan's house on a report from Keenan's child's grandmother that Keenan might be: (a) violating a PFA and (b) operating a vehicle with a child inside while intoxicated. The officer arrived and saw Keenan pull into the driveway. She made contact with Keenan who asked if he could put his child inside the house, and she noticed an odor of an alcoholic beverage, and poor balance and coordination. Keenan was on his cell phone the whole time he was making his way into the house, and he refused officers' request to enter. They entered anyway due to a concern for disappearance of evidence. After a brief dust-up with Keenan, officers recovered open containers from his vehicle and charged Keenan with felony DUI, third offense, refusing a preliminary breath test, and transporting an open container. Keenan alleged all evidence should be suppressed due to officers' warrantless entry. Judge Davis denied the motion. The Court of Appeals affirmed, holding the totality of the circumstances supports a finding of probable cause to arrest Keenan for violating a PFA and a possible DUI, and exigent circumstances excused their warrantless entry. The Court distinguished Welsh v. Wisconsin, 466 U.S. 740, 104 S. Ct. 2091, 80 L. Ed. 2d 732 (1984), because Kansas DUIs and PFA violations are jailable offenses. Also, the Court determined the officers were in hot pursuit because Keenan was trying to retreat into his house from an arrest that was "set in motion in a public place." See United States v. Santana, 427 U.S. 38, 43, 96 S. Ct. 2406, 49 L. Ed. 2d 300 (1976). The Court included this cautionary language in its conclusion: "With this holding we are not establishing a bright-line rule to approve the warrantless entry into the house of a driver suspected of being under the influence of alcohol. When considering the totality of the circumstances, we are only saying the facts of this case reflect the officers' warrantless entry into Keenan's house was justified and reasonable."

State v. Riess, ___ Kan. ___, ___ P.3d ___ (No. 102071, filed 05/02/14), reversing 45 Kan. App. 2d 85, 244 P.3d 693 (2010). See factual summary in Riess below. The Kansas Supreme Court reversed, and held that Riess was detained when he complied with the Officer's order to return to his truck, and at that point there was no reasonable suspicion to detain. It reversed his felony DUI conviction and remanded the case to the district court for further proceedings.

State v. Neighbors, ___ Kan. ___, ___ P.3d ___ (No. 105588, filed 04/25/14). Cops entered Neighbors' house after a landlord found him unresponsive in an apartment and did not recognize him as a tenant. Police eventually determined that while he was not a tenant, he was there with the tenant's permission. During the investigation, a narcotics officer recognized Neighbor's and his girlfrieind's name when officers ran them for warrants, and the narcotics officer showed up and begain looking around the apartment for drugs. He eventually found some. The Supreme Court held that officers exceeded their justification for the warrantless entry because the emergency aid doctrine dissipated once officers determined that Neighbors did not need medical assistance and had permission to be there.

Navarette v. California, 568 U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 12-9490, filed 04/22/14). A motorist's anonymous tip about reckless driving is enough for police to pull over a car, without an officer's corroboration of dangerous driving. Two men who pleaded to guilty to transporting marijuana after California Highway Patrol officers pulled over their silver Ford 150 pickup based on a report of reckless driving. The officers did not observe erratic driving, but acted after dispatchers received a 911 call saying the vehicle had run the caller off the road and identifying it by its model, color and license plate. Officers searched the truck after smelling marijuana, found four large bags of it and arrested driver Lorenzo Prado Navarette and passenger Jose Prado Navarette. The Supreme Court affirmed, holding the totality of the circumstances lead to a reasonable suspicion the driver was intoxicated.

State v. Englund, ___ Kan.App.2d ___, ___ P.3d ____ (No. 108446, filed 04/11/14). Englund, a Franklin County resident, committed some burglaries in Lawrence. Lawrence police obtained a search warrant from a Douglas county judge for Englund's residence in Franklin county and found incriminating evidence. Englund claims the evidence should have been suppressed because the warrant unlawfully authorized a search of a residence outside the territorial

jurisdiction of the judge who issued it. The Court of Appeals disagreed. It considered K.S.A. 22-2503 and K.S.A. 22-2505 together, two statutes enacted at the same time and that K.S.A. 62-1830 (Corrick 1964) was repealed, the legislature's intent is clear: district magistrates may no longer issue search warrants outside their home judicial district, but district judges can. Thus, we conclude the district court did not err in refusing to suppress the evidence obtained in the search of Englund's residence in Franklin County.

United States v. Chavez, ___ F.3d ___ (10th Cir. No. 13-4098, filed 04/10/14). Officers violated the Fourth Amendment, when pursuant to an arrest warrant for Chavez, they entered the back yard of a residence, looked through venetian blinds into the residence and saw Chavez (a convicted felon) with a gun. In United States v. Gay, 240 F.3d 1222, 1226 (10th Cir. 2001) the court interpreted Payton v. New York as creating a two-part test to determine when officers are justified in entering a home based on an arrest warrant. The "officers must have a reasonable belief the arrestee (1) lived in the residence, and (2) is within the residence at the time of entry." The court of appeals then stated that they did not need to decide whether the officers had a reasonable belief that Chavez lived at that residence, because even if they did, the officers did not have a reasonable belief that Chavez was present in the residence at the time the detective entered the back yard area and looked through the blinds.

State v. Stevenson, ___ Kan. ___, ___ P.3d ___ (No. 104115, filed 03/28/14), reversing 46 Kan. App. 2d 474, 262 P.3d 689 (No. 104115, filed 09/16/11). Sedgwick County officers stopped a vehicle driven by Stevenson for failing to signal the intent to turn within the appropriate distance. They had seen the vehicle leaving a known drug house, and stopped it on a pretext. Stevenson was the sole occupant. Officers noted an "extremely strong odor" of alcohol coming from the vehicle. Officers removed Stevenson for FSTs, and testified that a very strong odor of alcohol remained in the vehicle once Stevenson stepped out. The officers determined that Stevenson was not under the influence of alcohol and then searched the vehicle based on the odor. Officers found a large bottle of wine in the backseat of the vehicle that had leaked a large quantity of red wine onto the floorboard behind the driver's seat. They also found two pipes with methamphetamine residue and digital scales in the center console. Stevenson challenged the search, claiming odor alone did not establish probable cause. The Court of Appeals disagreed. Once Stephenson was removed from the car and it was determined that he was not intoxicated, the clear source of the "very strong" odor of alcohol was the interior of the car. In fact, it was so strong the officers immediately associated the odor with an open container that had spilled in the vehicle, certainly a fair inference. If the alcohol was being transported legally in an unopened container, it would not have a detectable odor. It was reasonable for the officers to act on their suspicions, rather than ignore evidence which signals a crime. Finally, Gant did not abrogate the automobile exception. The Supreme Court, however, agreed with Judge Buser's dissent and held there was no probable cause since no Kansas appellate court previously has held the odor of a legal substance may provide the sole basis to justify a warrantless search of an automobile based upon probable cause to believe the vehicle contained contraband or evidence of a crime. According to the Supreme Court, it would not be enough for the officers to merely believe that there was a fair probability they would find alcohol in Stevenson's vehicle. Rather, they had to reasonably believe that Stevenson had unlawfully transported in violation of K.S.A. 8-1599, any alcohol that might be found in the vehicle.

United States v. Harmon, 2014 U.S. App. LEXIS 1525 (10th Cir. N.M. Jan. 27, 2014). A police officer stopped Harmon after the officer saw Harmon's car weaving within his lane and the front and rear passenger tires of Harmon's car cross over the outer white line, or fog line, one time. The officer believed touching the fog line violated New Mexico law and was concerned that Harmon might be intoxicated or fatigued. After issuing Harmon a written warning for failing to maintain a lane, the officer obtained consent to search Harmon's car. During the search, the officer found packages of marijuana and cocaine hidden in the spare tire. The government indicted Harmon for two drug offenses. Harmon argued on appeal the officer did not have reasonable suspicion to justify the traffic stop. The court disagreed. The court noted the officer saw Harmon's car weaving and that its front and rear passenger wheels crossed the fog line. In addition, the court stated there was no evidence indicating difficult driving conditions or adverse weather existed that could have explained Harmon's driving errors. Consequently, the combination of these facts gave the officer reasonable suspicion to stop Harmon to investigate whether he was driving while impaired.

United States v. Gordon, 741 F.3d 64, 2014 U.S. App. LEXIS 1524 (10th Cir. Utah Jan. 27, 2014). Brandi Thaxton called 911 to report an incident of domestic violence that had occurred two days earlier. Thaxton, who was upset and crying, told the dispatcher her boyfriend, Gordon, assaulted her and broke her glasses. Thaxton also said Gordon had swung a samurai sword at her and told the dispatcher she believed Gordon would harm her after he found out she had called the police. Police officers responded to Gordon's house and entered without Gordon's consent. After an officer located Thaxton hiding in the basement, Thaxton led the officer upstairs to a bedroom to show him her broken glasses. Near the bedroom door, the officer saw a gun case, which contained a loaded shotgun. The officer seized the shotgun and three swords he found in the hallway. After the officer arrested Gordon for aggravated assault and Thaxton was transported by EMS to the hospital, the officer locked the house and transported Gordon to the county jail. On the way to the jail, while still in possession of Gordon's shotgun, the officer learned Gordon was a convicted felon. The government indicted Gordon for being in possession of a firearm. Gordon argued the shotgun should have been suppressed because the officers violated the Fourth Amendment by entering his house without a warrant or his consent and then seizing his shotgun without justification. First, the court held the officers' entry into Gordon's house was reasonable due to exigent circumstances. Even though Gordon assaulted Thaxton two days earlier, when the officers entered Gordon's house they knew Thaxton was upset, crying and afraid she would be seriously harmed when Gordon discovered she had called the police. Second, the court held it was reasonable for the officer to accompany Thaxton from the basement to the upstairs bedroom to retrieve her glasses. Third, the court held it was reasonable for the officer to initially seize Gordon's shotgun for safety reasons when the officer first saw it. However, once Gordon was in custody on the way to jail, and the house was secured, the court concluded the officer had no legal justification to continue his seizure of Gordon's shotgun. The court emphasized the plain view doctrine did not apply because the officer did not discover incriminating nature of the shotgun, specifically that Gordon was a convicted felon and could not lawfully possess a firearm, until he was transporting Gordon to jail. Finally, the court explained while the officer's only mistake was not returning the shotgun before securing Gordon's house, only a few minutes elapsed between the time the officer locked the house and discovered Gordon was a convicted felon. Because this amount of time was a de minimis intrusion Gordon's rights, and Gordon was lawfully in custody at the time, the court held suppression of the shotgun was not warranted.

United States v. Wells, 739 F.3d 511 (10th Cir. Okla. 2014). Federal agents suspected Officer Gray, a Tulsa police officer, was stealing money and drugs from suspects he detained. An undercover federal agent posed as a drug dealer named Joker and rented a motel room in Tulsa, which was outfitted with hidden audio and video recording equipment. In addition, there was $13,620 in government funds hidden in the room. After federal agents instructed a cooperating witness to tell Gray a drug dealer with large quantities of drugs and cash was conducting business from the motel room, Officer Gray, Officer Wells and Officer Hill went to the motel and encountered Joker in the lobby. The officers handcuffed Joker and detained him in a patrol car. After Wells obtained Joker's consent to search, Wells and Gray went to Joker's room. The audio and video recordings in Joker's room established Wells and Gray stole $2,000 from the room and later allowed other officers to take an additional amount of money. The government indicted Wells for a variety of offenses involving official corruption. Wells argued the trial court should have suppressed the audio and video recordings that documented his activities in the motel room because Joker was not present in the room when these activities were captured. First, while 18 U.S.C. §§ 2510-2520 (Title III) regulates the interception and recording of audio communications, the court stated Title III only applies to communications that are made where the speaker has a reasonable expectation of privacy. Similarly, video surveillance will not violate the Fourth Amendment if the person whose actions are being recorded has no reasonable expectation of privacy at the time of the surveillance. Second, the court noted the Tenth Circuit has not been generous in recognizing the privacy rights of individuals found in hotel or motel rooms that were not rented in their names. The Tenth Circuit has required that such individuals present evidence establishing they are guests of the renter, rather than individuals merely present on the premises. In this case, Wells was not Joker's guest nor did he have any socially meaningful connection to the motel room. After obtaining Joker's consent to enter the room, Wells spent approximately fifteen minutes in the room outside Joker's presence. Wells was merely legally present in the room for a very limited amount of time. Consequently, the court concluded Wells did not have a reasonable expectation of privacy in any of his communications in Joker's motel room when he was outside Joker's presence.

State v. Patterson, ___ Kan.App.2d ___, ___ P.3d ____ (No. 109995, filed 02/28/14). Wichita officers executed a drug warrant at an address, and searched a white Mercedes parked in the driveway. Officers recovered evidence of drug offenses from the Mercedes. Defendant alleges the Mercedes was outside the scope of the warrant. The Court of Appeals disagreed, finding Mercedes was within the residence's curtilage, and Kansas warrants include the curtilage and vehicles therein.

Fernandez v. California, 568 U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 12-7822, filed 02/24/14). The suspect was arrested by police after his girlfriend allowed officers to search the couple's apartment. Abel Lopez was attacked and robbed on Oct. 12, 1999 by a man he later identified as Walter Fernandez, a member of the Drifters gang. After Lopez called 911, LAPD Detective Kelly Clark and Officer Joseph Cirrito responded to Magnolia Avenue and 14th Street. An investigation led them to an apartment in a house just off a known gang alley. The officers heard the screams of Fernandez girlfriend, Roxanne Rojas. After knocking on the door, Rojas answered with a bruised nose and bloody hand. Detectives requested entry and Fernandez stepped forward and refused. They arrested Fernandez and took him to jail. Approximately one hour later, Detective Clark returned to the apartment and informed Rojas that Fernandez had been arrested. Detective Clark requested and received both oral and written consent from Rojas to search the premises. Rojas consented verbally and in writing. A search of the apartment revealed gang paraphernalia, a butterfly knife, a shotgun, and ammunition. Fernandez was later found guilty by a jury on the robbery charge. On appeal, he argued the trial court improperly denied his motion to suppress. The appellate court ruled the search was lawful, and the Supreme Court affirmed. It held that Georgia v. Randolph does not apply if the objecting occupant is absent when another occupant consents.

United States v. Christy, 739 F.3d 534 (2014)(No. 12–2127, 2014 WL 26455). Officers were investigating a pervert suspected of transporting a female 16 year-old girl from California to New Mexico and back. Detectives identified Christy and obtained his cell phone records, showing that he had traveled from New Mexico to California and back. The California detectives asked New Mexico officers to go to Christy's home to look for K.Y. An officer walked to the rear of the home and peered through the blinds. He saw K.Y. wearing a bra and panties, smiling and holding a rope. He reported his observations to a supervisor and asked for permission to force entry into the home. He then looked through the blinds again and saw that K.Y. was now bound by the rope and she was no longer wearing the bra. The officer also saw camera flashes. When other officers arrived, they forced entry into the home and arrested Christy. During a protective sweep, the officers saw pornography. Christy was interviewed. He admitted to picking up K.Y. in California, bringing her to New Mexico and to having sex with her. Officers obtained a search warrant for his home. They found sex toys, condoms and child pornography, including child pornography manufactured by Christy and showing K.Y. Christy asked the court to suppress evidence obtained during the initial entry and during the search warrant execution, claiming that there were insufficient exigent circumstances for a warrantless entry. The trial district court agreed that the officer lacked justification to make the warrantless entry. However, the judge declined to suppress the evidence, applying the inevitable discovery rule and finding that the officers would have obtained a search warrant even if they had not entered. The 10th Circuit agreed, reaffirming the notion that the inevitable-discovery doctrine requires only that the lawful means of discovery be independent of the constitutional violation. Under the majority view, an effort to obtain a warrant is but one factor of the inevitable discovery doctrine. The court must have a "high level of confidence" that the warrant would have (not merely could have) been issued, if the application process had been completed. The court cautioned officers against trying to "game the system" and avoid obtaining a warrant. In this case there was a strong showing of probable cause that would have lead to a warrant to enter the home to search for the missing girl. Officers had obtained warrants in the past under similar circumstances and were familiar with the warrant application process. The officer knew of the significant age difference between Christy and his victim, that the two had exchanged sexually-explicit images, that Christy had taken K.Y. across state lines, that K.Y. was depressed and suicidal, and the officer saw K.Y. nude and bound with a rope. Thus the evidence was properly admitted and the conviction upheld.

Sentencing

State v. Murdock, ___ Kan. ___, ___ P.3d ___ (No. 104533, filed 05/02/14, unchanged on rehearing 09/19/14). When calculating a defendant's criminal history that includes out-of-state convictions committed prior to enactment of the Kansas Sentencing Guidelines Act, K.S.A. 21-4701 et seq., the out-of-state convictions must be classified as nonperson offenses. Prior caselaw contrary to this holding is overruled.

Burrage v. United States, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 12-7515, filed 01/27/14). Defendant's conviction for unlawfully distributing heroin where death resulted from the use of that substance, which subjected him to a 20-year mandatory minimum sentence under the penalty enhancement provision of the Controlled Substances Act, is reversed and remanded, where at least where use of the drug distributed by the defendant is not an independently sufficient cause of the victim’s death or serious bodily injury, a defendant cannot be liable for penalty enhancement under the Controlled Substances Act unless such use is a but-for cause of the death or injury.

Stalking

Dester v. Dester, ___ Kan.App.2d ___, ___ P.3d ____ (No. 111115 filed 09/19/14). Chad couldn't get over his divorce from Melissa, causing her to get a protection from stalking order against him in 2011. The Court renewed it in 2012 and 2013. Chad argued that the court could only extend it once because it was issued under the 2011 version of K.S.A. 60-31a06(b). Not so, according to the Court of Appeals. (1) The provisions of the Act are to be liberally construed to protect victims of stalking; (2) the relevant amendments to the Act extend the remedies in the event stalking is proven; (3) the 2012 amendments to the Act have retroactive application to pending PFS actions; and (4) the retroactive application of these amendments does not violate Chad's due process rights as he does not have a vested right which is implicated by the retroactive effect of the amendments.

Trafficking

State v. Williams, ___ Kan. ___, ___ P.3d ___ (No. 102036, filed 06/27/14), affirming State v. Williams, 46 Kan. App. 2d 36, 257 P.3d 849 (2011). A Dallas detective found a 15-year old prostituting in Dallas, and it turned out she was working for "Pressure," a/k/a Williams. The jury found Williams guilty of aggravated trafficking under K.S.A. 21-3447(a)(2). The district court imposed a downward durational departure sentence of 246 months' imprisonment. Williams raised a variety of issues, but the Supreme Court upheld the constitutionality of K.S.A. 21-3447(a)(2), concluding the provision is not overbroad. Also, because Williams' conduct clearly fell within the terms of K.S.A. 21-3447(a)(2), the Court determined that Williams lacked standing to raise an argument that the provision is unconstitutionally vague. The Court also rejected Williams' other arguments: that aggravated trafficking is identical to the offense of promoting prostitution, promoting prostitution is a more specific offense than aggravated trafficking, the prosecutor committed misconduct, and the district court should have submitted the question of his criminal history to a jury.




2013 Case Updates

Quick Links to prior year lists.

1st Amendment

Bland v. Roberts, ___ F.3d ___ (4th Cir. No. 12-1671, filed 09/23/13). A Facebook "like" is speech that is protected by the First Amendment. Liking a political candidate’s campaign page "is the Internet equivalent of displaying a political sign in one’s front yard, which the Supreme Court has held is substantive speech," the court said. The court ruled on behalf of jailer Daniel Carter, who lost his job after Hampton, Va., Sheriff B.J. Roberts won re-election. Carter had backed Roberts’ opponent and liked his Facebook page. The court ruled the sheriff did not have to pay money damages because he was entitled to qualified immunity, but he is not protected from the remedy of reinstatement, according to the National Law Journal account. Carter was one of six employees who sued after their firing, but the only employee to raise the Facebook "like" issue.

2nd Amendment

Montana Shooting Sports Association v. Montana, ___ F.3d ___ (9th Cir. No. 10-36094, filed 08/23/13). The Ninth Circuit ruled against a Montana state law like the one in Kansas that declares federal firearms regulations don’t apply to guns made and kept in the state. The 9th Circuit doesn’t include Kansas, but the decision focuses on a law that is similar to the Second Amendment Protection Act, which was approved by the Kansas Legislature this year and signed by Gov. Sam Brownback. The plaintiffs were a gun manufacturer and a shooting club that challenged the application of federal gun regulations to them, relying on the Montana law. The district court dismissed the action because no plaintiff had standing and, in the alternative, because the complaint failed to state a claim. The Ninth Circuit disagreed on the standing issue, but affirmed on the failure to state a claim, holding the Montana law was preempted by federal firearm regulations. Plaintiffs argued that the Supreme Court's Commerce Clause jurisprudence illustrated in Gonzales v. Raich, 545 U.S. 1, 22 (2005)(Congress may regulate marijuana because it substantially affects interstate commerce), should be narrowly confined to its facts, but the Ninth Circuit rejected this claim, stating, "[t]here is no language in Raich limiting its principles to "'national defense"' concerns.

Laigaie v. City of Bellingham, Wash. Case No. unknown (profiled on web 08-16-13). John Laigaie is a retired military man who has always carried a handgun on his hip. "It's my job, it's what I do," he said. "I protect myself and my family." He's also a gun rights activist who firmly believes in his constitutional right to bear arms. So when a Bellingham police officer challenged him for doing just that at Bloedel-Donovan Park, he argued with him. Laigaie knew that Washington is an "open carry" state where it is allowed. He even offered the officer, Allen Bass, a copy of that law when Bass asked for his identification. When Laigaie refused to hand over his ID, he said the officer pulled out his own weapon and pointed it at him. "A couple of times, he had it right in my chest and that was 6, 7 inches from muzzle to flesh," Laigaie said. Laigaie demanded that the officer put the weapon away. "I wasn't breaking the law, I was well within the law and he had no right to do that. I don't like being bullied," he said. Laigaie said he never touched his own gun, just continued to clutch the leashes of the dogs he was walking. He said everything calmed down after two other men in the park approached the pair, and told the officer that carrying a holstered weapon in Washington was legal. Laigaie filed a complaint against the city claiming his civil rights were violated. As part of a civil settlement, Laigaie was awarded $15,000. He was also told that all police officers and 911 dispatchers in the city will be trained in open carry laws. The Bellingham Police Department declined requests for an interview.

Kachalsky v. Cacace, ___ F.3d ___ (2nd Cir. No. _____, filed //13, cert. denied 4/15/13. A New York law requires gun owners seeking a "concealed carry" permit to demonstrate a special need for self-protection. The 2nd Circuit upheld the law, which is similar to laws in California, Hawaii, Maryland, Massachusetts and New Jersey. In December, the Chicago-based 7th U.S. Circuit Court of Appeals issued a contrary ruling, striking down an Illinois law that barred most citizens from carrying guns outside the home. According to SCOTUSblog, there is a “clear split” among the federal appeals courts on whether the Second Amendment protects gun rights outside the home, "and yet that was not sufficient to draw the court back into the center of the controversy."

Woollard v. Gallagher, ___ F.3d ___ (4th Cir. No. 12-1437, filed 03/21/13). Maryland employs a "may issue" concealed carry scheme. It essentially requires that a person show "good-and-substantial reason" for needing to carry a firearm in public - concealed or open. Exceptions exist for things such as sporting and transporting firearms to and from stores. Certain individuals are basically guaranteed a permit (judges, prosecutors, public defenders, police officers, etc.). Raymond Woollard was initially approved for a permit after his drug-addict son-in-law broke into his home on Christmas and tried to steal their car. An armed confrontation ensued and violence was averted when Woollard’s son subdued the intruder with a shotgun. Woollard got his permit, as well as one renewal, but was denied a second renewal when he was unable to show any indication of need beyond the now six-year-old break in. Woollard sued, and the district court enjoined enforcement of the "may issue," law, deciding it violated the 2nd Amendment. The Fourth Circuit reversed, calling the district court's judgment a," trailblazing pronouncement that the Second Amendment right to keep and bear arms for the purpose of self-defense extends outside the home." See Woollard v. Sheridan, 863 F. Supp.2d 462 (D. Md. 2012). Stating its disagreement with the district court's conclusion that the good-and-substantial-reason requirement cannot pass constitutional muster, it reversed without "needlessly demarcating the reach of the Second Amendment."

 

We hew to a judicious course today, refraining from any assessment of whether Maryland’s good-and-substantial- reason requirement for obtaining a handgun permit implicates Second Amendment protections. That is, we merely assume that the Heller right exists outside the home and that such right of Appellee Woollard has been infringed. We are free to make that assumption because the good-and-substantial-reason requirement passes constitutional muster under what we have deemed to be the applicable standard — intermediate scrutiny.

Peterson v. Martinez, 707 F.3d 1197 (10th Cir. No. 11-1149, filed 02/22/13). Gray Peterson sued Denver and Colorado’s Department of Public Safety claiming that being denied a concealed-weapons permit because he was not a Colorado resident violated his Second Amendment right to bear firearms. The 10th Circuit ruled that carrying concealed firearms is not protected by the Second Amendment or the Privileges and Immunities Clause, nor is the right of people to keep and bear arms infringed upon by laws prohibiting the carrying of concealed weapons. "Given that the concealed carrying of firearms has not been recognized as a right, and the fact that concealed carry was prohibited for resident and non-resident alike for much of our history, we cannot declare this activity sufficiently basic to the livelihood of the Nation."

14th Amendment

State v. Cooper, ___ Kan.App.2d ___, ___ P.3d ____ (No. 107222, filed 03/15/13). The Privileges and Immunities Clause of the Fourteenth Amendment does not preclude Kansas from enforcing its statutes criminalizing the possession of marijuana against a Colorado resident in this state with marijuana lawfully obtained under the laws of that state.

Administrative Law

MCJS Inc., dba Reed's Ringside Sports Bar and Grill v. Kansas Dept. of Revenue, ___ Kan.App.2d ___, ___ P.3d ____ (No. 108788, filed 10/25/13). Although courts no longer give deference to the interpretation of a statute adopted by an administrative agency, In re Tax Appeal of LaFarge Midwest, 293 Kan. 1039, 1044, 271 P.3d 732 (2012), the director's decision that Reed's was strictly liable for serving alcohol to a minor is affirmed. The first sentence of K.S.A. 41-2615 prohibits licensees from "knowingly or unknowingly" permitting the possession or consumption of alcohol by a minor on the premises. Reed's "unknowingly permitted" service to a minor by merely allowing him to enter the premises and by serving alcohol in an area within his reach. The evidence established that the minor purchased or consumed on the premises, and it was unnecessary to establish that Reed's employees permitted the act by actually serving the beer to him or observed him drinking on the premises.

Canines

Florida v. Jardines, 569 U.S. ___, 133 S.Ct. 1409, ___ L.Ed.2d ___ (No. 11-564, 3/26/13). After receiving an anonymous tip that Joelis Jardines’ home was being used to grow marijuana, Drug Enforcement Agency ("DEA") officers conducted a warrantless surveillance of Jardines’ home. During the surveillance, a drug detection dog sniffed the exterior of the home and alerted to a smell of marijuana at the front door. Based on this positive alert, among other indications of marijuana production, the officers were granted a search warrant. The search confirmed that the house was being used as a marijuana grow house and Jardines was charged with drug trafficking and grand theft for stealing electricity. Jardines successfully moved to suppress evidence of the dog sniff outside his home by arguing that the sniff constituted an unreasonable search under the Fourth Amendment. The Florida Third District Court of Appeal reversed and held that the canine sniff was not a Fourth Amendment search. The Florida Supreme Court ultimately reversed the appellate court’s decision and held that a dog sniff is a substantial government intrusion into the sanctity of the home and constitutes a search within the meaning of the Fourth Amendment. The United States Supreme Court, in a 5-4 decision, agreed, limiting itself to the question of whether the officers’ behavior was a search within the meaning of the Fourth Amendment. Officers physically intruded onto the curtilage and were gathering information in an area belonging to Jardines. A person's right to retreat into the home would be significantly diminished if the police could enter a man’s property to observe his repose from just outside the front window. The typical "license" to approach, knock on the door and seek to engage the occupant is different from entering onto the porch to seek evidence of a violation of the law. " The scope of a license—express or implied—is limited not only to a particular area but also to a specific purpose." The dissent alleged the majority's interpretation relied on an unprecedented interpretation of trespass law. The majority concludes the officer "committed a trespass because he was accompanied during his otherwise lawful visit to the front door of respondent’s house by his dog, Franky. Where is the authority evidencing such a rule?" ___ U.S. ___, Alito, J., dissenting. Alito goes on to point out this entire transaction took less than a minute or two.

Florida v. Harris, 568 U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 11-817, 2/19/13). An alert by a well-trained narcotics detection dog certified to detect illegal contraband is sufficient to establish probable cause for the search of a vehicle, even if the dog alerts to substances he hasn't been trained to detect. Officer Wheetley stopped Clayton Harris’s truck for expired tags and searched the vehicle after his drug-detection dog alerted to the driver-side door handle. Officer Wheetley recovered precursors to methamphetamine, and at trial Harris alleged that Officer Wheetley did not have probable cause, or a reasonable basis, to search and violated his Fourth Amendment rights. On appeal, Harris argued that training alone cannot establish a dog’s reliability because there are no standard certification standards for drug-detection dogs, and dogs are likely to be influenced by outside factors that could affect their reliability. Florida asserts that certification of a dog should be sufficient to prove reliability, and to provide adequate basis for a search. The Supreme Court held that training and testing records supported the dog's reliability in detecting drugs, and that Harris failed to undermine that evidence, therefore, the officer had probable cause to search Harris’s truck. All that is required is the kind of “fair probability” on which “reasonable and prudent [people] act.” To evaluate whether the State has met this practical and common-sensical standard, the Court looks to the totality of the circumstances and rejects rigid rules, bright-line tests, and mechanistic inquiries. The Florida Supreme Court's strict evidentiary checklist to assess a drug-detection dog’s reliability flouts this established approach. Requiring the State to introduce comprehensive documentation of the dog’s prior hits and misses in the field, and holding that absent field records will preclude a finding of probable cause no matter how much other proof the State offers, is the antithesis of a totality-of-the-circumstances approach. This is made worse by the State Supreme Court’s treatment of field-performance records as the evidentiary gold standard when, in fact, such data may not capture a dog’s false negatives or may markedly overstate a dog’s false positives. Such inaccuracies do not taint records of a dog’s performance in standard training and certification settings, making that performance a better measure of a dog’s reliability. Field records may sometimes be relevant, but the court should evaluate all the evidence, and should not prescribe an inflexible set of requirements. Under the correct approach, a probable-cause hearing focusing on a dog’s alert should proceed much like any other, with the court allowing the parties to make their best case and evaluating the totality of the circumstances. The State introduced substantial evidence of Aldo’s training and his proficiency in finding drugs. Harris declined to challenge any aspect of that training or testing in the trial court, and the Court will not consider his arguments for the first time on appeal.

Civil & Criminal Liability

University of Kansas Hospital Authority v. Board of Commr's of Wabaunsee County, ___ Kan. ___, ___ P.3d ___ (No. 104236, filed 06/27/14). A KHP trooper arrested Ector Manuel Savala-Quintero, a/k/a Alberto Contreras Gonzalez, (Contreras) on drug charges. Those charges were resolved, and Contreras was released to Shawnee County on warrants and an ICE hold. Contreras bonded out of the Shawnee County jail on and returned to the Wabaunsee County courthouse to retrieve some personal items he had left at the jail, which is located on the fourth floor of the courthouse. He was let into the jail but they weren't going to release him, believing either that he was not out on bond or that the ICE hold required his detention. In any event, once Contreras realized he was being held, he jumped through the fourth-story window of an unlocked interrogation room. After Contreras hit the ground, he attempted to get up and run away, but he could not move because his hips were broken. The Court held the County was not obligated to pay the expenses because Contreras, although temporarily detained, was not a prisoner committed to or held in the county jail at the time he was injured and hospitalized. Note: The Court held the Hospital Authority waived all its contractual and statutory theories or recovery and only addressed recovery based on prior case law. The Court held that K.S.A. 19-1910 controls over the case law on which the Hospital Authority relies, and concluded that under K.S.A. 19-1910, the County would only be obligated to pay for Contreras' medical care if he had no resources to pay for his own care and if he was a prisoner committed to or held in the county jail, meaning he had been sentenced to jail; had been arrested and was being detained in jail while awaiting trial; had been apprehended and arrested and was to be detained in jail while awaiting trial but for his injuries; or had been otherwise committed to jail, such as in a civil commitment proceeding. Since none of these facts existed, the County was not liable.

Case Name Unknown, profiled on policeone.com 12/17/2013. The Los Angeles City Council on Tuesday agreed to pay nearly $6 million to a group of police officers who accused their superiors of imposing a secret traffic ticket quota system on the Westside. The lawsuits alleged that Lauer, a traffic Captain who ran the division starting in 2006, required officers to write at least 18 traffic tickets each shift and demanded that 80% of the citations be for major violations. Officers who failed to meet the minimums or raised concerns about them were reprimanded, denied overtime assignments, given undesirable work schedules and subjected to other forms of harassment, according to the lawsuits. In a few instances, Lauer attempted to kick officers out of the motorcycle unit, the lawsuits said. In a statement, Chief Charlie Beck defended the division's practices. Management set "goals" to reduce traffic violations that resulted in serious injury and death, Beck said, but the jury in a separate 2009 case interpreted that as quotas, he said. "We do not agree with the original jury's findings," he said. "Unfortunately the large jury award in the earlier court case made settling this case the most prudent business decision." The $5.9-million settlement approved Tuesday resolves two lawsuits filed in 2010 by 11 LAPD officers assigned to a motorcycle unit. The settlement, approved unanimously, brings to more than $10 million the amount of taxpayer money spent on payouts and legal fees from the ticket quota cases. But that number could grow because one more officer's case is still pending.

Stanton v. Sims, 568 U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 12-1217, filed 11/04/13). California officer Stanton received an unknown disturbance call involving a person with a baseball bat in a gang-infested area in La Mesa. As officers approached the call location they saw three men walking in the street, two of whom ducked into an apartment complex and one ran towards a house. Stanton ordered the one that went toward the house to stop, but the man refused, looked at him, then entered the front yard through a gate. The front yard was surrounded with a 6-foot tall privacy fence. Stanton kicked open the gate. Sims happened to be standing behind the gate and was injured. She sued, claiming the entry was unlawful. The 9th Circuit agreed, and held that the law was clearly established and Stanton should have known better. The Supreme Court summarily reversed. It noted the law on warrantless entries on misdemeanor offenses is still unsettled, and Stanton may have been mistaken in believing his actions were justified, but he was not "plainly incompetent." Compare, e.g., Middletown v. Flinchum, 95 Ohio St. 3d 43, 45, 765 N. E. 2d 330, 332 (2002) ("We . . . hold today that when officers, having identified themselves, are in hot pursuit of a suspect who flees to a house in order to avoid arrest, the police may enter without a warrant, regardless of whether the offense for which the suspect is being arrested is a misdemeanor"), and State v. Ricci, 144 N. H. 241, 244, 739 A. 2d 404, 407 (1999) ("the facts of this case demonstrate that the police had probable cause to arrest the defendant for the misdemeanor offense of disobeying a police officer" where the defendant had fled into his home with police officers in hot pursuit), with Mascorro v. Billings, 656 F. 3d 1198, 1207 (CA10 2011) ("The warrantless entry based on hot pursuit was not justified" where "[t]he intended arrest was for a traffic misdemeanor committed by a minor, with whom the officer was well acquainted, who had fled into his family home from which there was only one exit" (footnote omitted)), and Butler v. State, 309 Ark. 211, 217, 829 S. W. 2d 412, 415 (1992) ("even though Officer Sudduth might have been under the impression that he was in continuous pursuit of Butler for what he considered to be the crime of disorderly conduct, . . . since the crime is a minor offense, under these circumstances there is no exigent circumstance that would allow Officer Sudduth's warrantless entry into Butler's home for what is concededly, at most, a petty disturbance").

State v. Craddick, ___ Kan.App.2d ___, ___ P.3d ____ (No. 108335, filed 11/01/13). Under K.S.A. 2011 Supp. 21-5111(m), a pellet rifle is not a firearm because rather than propelling projectiles by force of an explosion or combustion, it propels projectiles by force of air or gas. Craddick was engaged in a disagreement with the victims about his dog, and pointed his Ruger Airhawk pellet rifle at victims and threatened to shoot them with his "rifle gun" if they did not put his dog on the ground. Craddick pled to attempted aggravated assault and the court sentenced him in accordance with the presentence investigation (PSI) report, which recommended the district court apply the special sentencing rule that changes a guidelines sentence from presumptive probation to presumptive prison if the person felony was committed with a firearm. The Court of Appeals reversed, holding the pellet rifle is not a firearm.

State v. Llamas, ___ Kan. ___, ___ P.3d ___ (No. 104827, filed 10/25/13). Llamas was with Navarro, who killed Flores by shooting him while Flores sat in his suburban. Depending on who you believe, Llamas drive himself and Navarro from the scene, or was a passenger and hung with Navarro immediately after the shooting. He was convicted of felony murder and criminal discharge of a firearm at an occupied vehicle, when he aided and abetted Michael Ismael Navarro, who actually discharged the firearm and killed Omar Flores. He alleged the evidence was insufficient to show anything other than he was merely present at the time of the shooting. The Court disagreed, finding there was sufficient evidence for the jury to believe that Llamas assisted Navarro in the shooting.

United States v. United States Border Patrol, court and case no. unknown, profiled on findlaw.com on September 26, 2013. The U.S. Border Patrol settled a racial profiling lawsuit with the American Civil Liberties Union and the Northwest Immigrant Rights Project. The settlement resolves a lawsuit that alleged agents were racially profiling people in a rural area of Washington state. As part of the settlement, the Border Patrol agreed to share records of every traffic stop it makes in Washington's Olympic Peninsula for 18 months. The lawsuit in Washington state was borne by mounting tensions between immigrants and Border Control agents on the Olympic Peninsula. Many immigrants from Mexico and Guatemala moved to the rural area to work in the forests picking salal, an ornamental leaf. In this case, Border Control agents allegedly stopped and interrogated three American citizens (on separate occasions) about their immigration status. In each instance, the agents never provided a reason for the stop. The government's attorneys sought a settlement after a judge denied their motion to dismiss the case. Though a settlement was reached, much to the dismay of immigrants' rights advocates, the Border Patrol admitted no wrongdoing in the settlement.

Guerena v. Pima County, court and case no. unknown - profiled on PoliceMagazine.com on 09/24/13. Pima County, Ariz., has agreed to settle a lawsuit over the fatal shooting of a Marine who pointed a gun at SWAT officers during a raid two years ago. County officials say they'll pay $3.4 million to end a two-year legal battle. The settlement closes out the county's dispute with Vanessa Guerena, the widow of a former Marine, Jose, who died in a barrage of police gunfire on May 5, 2011. The settlement also includes Marana, Oro Valley, and Sahuarita, which had officers in the raid. SWAT team members had arrived at the home of Jose Guerena, 26, southwest of Tucson after receiving information in a narcotics investigation that he may be involved in drug trafficking. Guerena was killed during the raid while holding an AR-15 rifle. Officers fired 71 shots; 22 struck Guerena. A Pima County Sheriff's Department spokeswoman told the Daily Star the agency disagrees with the settlement because even though the shooting was tragic, officers "performed that day in accordance with their training and nationally recognized standards." The county's administrator called he agreement a "calculated risk-management settlement." The officers were cleared in June of 2011, when Chief Criminal Deputy Attorney David Berkman released a report concluding officers needed to "take immediate action to stop the deadly threat against them." According to a commentor citing public information, one of the detectives claimed that Guerena had "five felony arrests involving drugs" but no convictions, which was not true. Guerena' widow stated that two members of her sister-in-law's family were killed previously in a home invasion, which may have led to a heightened level of anxiety for the inhabitants. Four officers fired the first volley, then a fifth joined. SWAT fired 71 shots in 7 seconds. Officers refused the deceased medical attention and somehow utilized 2 separate robots to investigate.

Univ. of Kansas Hospital Authority v. Unified Gov't. of Wyandotte County, 49 Kan. App. 2d 449, 313 P.3d 60 (2013, No. 108391, filed 09/13/13, affirmed No. 108391 filed 05/22/15). Plaintiffs sued to recover the cost of medical treatment provided to an arrested person. The facts are:

1.On November 5, 2008, Highway Patrol Trooper Greg Peters determined a vehicle was speeding in Wyandotte County and pursued it.

2.The driver of the speeding vehicle, Wayne Thomas, eventually crashed.

3.The Trooper arrested and handcuffed Thomas.

4.Trooper Peters drove Thomas to the University of Kansas Hospital, still handcuffed, where nursing personnel advised Peters that Thomas would be admitted.

5.Trooper Peters advised the nurses that Thomas was on a 'police hold'.

6.The next day, hospital personnel advised Peters that Thomas was ready for release.

7.Trooper Peters went to the hospital, handcuffed Thomas and took him to the Wyandotte County jail.

8.Thomas was charged in Wyandotte County District Court with eluding a police officer, a severity level 9, person felony.

9.Mr. Thomas was indigent and had no medical insurance.

10.The reasonable and necessary charges made for his care by plaintiff University of Kansas Hospital Authority totaled $23,197.29.

"11.The reasonable and necessary costs for his care by plaintiff Kansas University Physicians, Inc. totaled $2,311.00."

The district court denied the State's motion for summary judgment and granted summary judgment in favor of KU and against the State. The Court of Appeals affirmed based on K.S.A. 22-4612. The statute supersedes the prior policy enunciated in Wesley Med. Center v. City of Wichita, 237 Kan. 807, Syl. ¶¶ 2, 3, 703 P.2d 818 (1985), that a county would be held liable for the medical expenses of all offenders arrested for and subsequently charged with a violation of state law, regardless of which police agency made the arrest or whether such expenses were incurred before or after the offender was placed in the county jail.

Stormont-Vail Healthcare Inc. v. State of Kansas. Posted: September 10, 2013 - 3:55pm in the Topeka Capital-Journal. By Tim Hrenchir. Stormont-Vail HealthCare Inc. is suing the state of Kansas, Shawnee County and the city of Topeka seeking payment of medical bills incurred by a man hurt in a crash at the end of a vehicle chase in October 2010. Attorney E. Lou Bjorgaard filed a lawsuit petition on behalf of Stormont-Vail on Aug. 23 in Shawnee County District Court seeking damages of $21,198.14, plus costs and 10 percent interest from the date of Aug. 24, 2010. The petition said an officer with Capitol Police, which is part of the Kansas Highway Patrol, attempted on Aug. 23, 2010, to stop a car that led Capitol Police on a chase that ended when the car’s driver went southbound through a red light at S. Kansas Avenue and 29th Street and struck the side of a truck, which was being driven eastbound on 29th. The petition says Topeka police took possession of the driver’s belongings and took custody of blood drawn from him, while Shawnee County filed felony charges against him in December 2010. Topeka Capital-Journal archives show Robert R. Horton, the driver, was subsequently convicted of two counts of reckless aggravated battery — one involving bodily harm and the other involving great bodily harm — and remains an inmate at Norton Correctional Facility. The petition, while not specifically naming Horton, says his hospital bills totaled $75,441.03 while the Medicaid rate for his treatment was $21,198.14. "When the law enforcement officers brought the patient into Stormont, and requested that Stormont treat him, Stormont reasonably believed that defendant state of Kansas, defendant Shawnee County, or defendant city of Topeka, or all of them, would process the claims without delay and would pay Stormont for the treatment it provided," the petition said. That didn’t happen, it said. The petition cited laws it said mandate that:

        When a person is injured by a state law enforcement officer, the state shall be liable to pay for that person’s medical treatment.

        All other costs for medical treatment shall be borne by the county.

        The payment rate is to be the lesser of the billed charges or the Medicaid rate for the medical treatment of a person in the custody of a city, a county law enforcement agency or the highway patrol.

Wichita Claims. Wichita begins settling damage claims after standoff at apartments - Apartment complex tenants file more than $100,000 for damages. Posted in the Topeka Capital-Journal: September 11, 2013 - 7:52am By The Associated Press. WICHITA — The Wichita City Council has approved the first settlement in at least a dozen claims filed by tenants of an apartment complex damaged in a police standoff in July. The council on Tuesday approved a $20,000 settlement to Alyssa Cooper and Derrick Jochum. They lived together in one of the apartments damaged in the July 11 standoff with 24-year-old Jared Woosypiti, who was killed in a gunfight with police. Woosypiti, 24, was killed by police gunfire after he holed up in the complex after a chase. He was wanted for stabbing his girlfriend July 4 in Derby and for firing shots in a south Wichita Kmart later that month. The city faces at least a dozen claims for a total of more than $100,000 for damages caused by police during the 32-hour standoff. Officers fired tear gas, detonated explosive devices and shot water into the apartments. Six apartments were damaged. The city pays such claims out of its self-insurance fund. UPDATE: Wichita denied a $400,000 claim by an insurer for the complex, asserting that it was immune. This is after it paid out over $60,000 in claims to apartment tenants.

Kubert v. Best, ___ N.J.App. ___ (No. A-1128-12T4, filed 8/27/13). In a case of first impression, a New Jersey appeals court held that a remote texter can be held liable to third parties for injuries caused when the distracted driver has an accident. However, that is only true if the individual sending the texts from another location knew they were being viewed by the recipient as he or she was driving. In this case, Kyle Best was the driver and the text was sent by Shannon Colonna. Best hit and caused serious injury to two motorcyclists (Kuberts) less than 30 seconds after receiving a text from Colonna. Colonna moved for summary judgment alleging there was insufficient evidence to show that she knew Best was driving at the time she sent the text. The appeals court held that Colonna should have been granted summary judgment. "We conclude that a person sending text messages has a duty not to text someone who is driving if the texter knows, or has special reason to know, the recipient will view the text while driving. But we also conclude that plaintiffs have not presented sufficient evidence to prove that Colonna had such knowledge when she texted Best immediately before the accident." Colonna had sent two texts to Best on theafternoon the accident occurred, and the other one was sent about two hours before the accident. "Even if a reasonable inference can be drawn that she sent messages requiring responses, the act of sending such messages, by itself, is not active encouragement that the recipient read the text and respond immediately, that is, while driving and in violation of the law."

Allen v. Several Defendants, profiled on Findlaw August 29, 2013. A child porn victim from Pennsylvania is using a law that she inspired to sue her viewers. Masha Allen's lawsuit seeks $150,000 each from pedophiles -- including doctors, lawyers, and even her own father -- who've viewed sexually explicit images of her. "Masha's Law" is named for Allen, a Russian orphan adopted at age 5 by divorced Pittsburgh-area millionaire Matthew Mancuso. Over the course of five years, Mancuso turned Masha into a child porn Internet sensation by producing and circulating about 200 explicit images of her, some of which were taken at Disney World. Authorities believe the images have been viewed millions of times online. In 2003, Masha was rescued during a national investigation into Internet pedophiles. After she went public with her story, Congress passed Masha's Law. The law, which is included in the Adam Walsh Child Protection and Safety Act of 2006, allows child porn victims 18 and over to sue anyone caught with their explicit images. It's important to note that the law doesn't require an actual download; many successful prosecutions are completed through using residual images left on the viewer's computer. Under the law, Allen is entitled to a minimum payout of $150,000 from each man. While Allen is seeking the minimum amount from each offender, she may receive about $100 million as the lawsuits against the almost 2,000 men caught with her images grow. Masha, who now lives under another name, receives a notice from the U.S. Justice Department every time someone is caught with her images.

Estate of Zachary Champommier v. United States, (U.S.D.C. CA, profiled on Policemag.com 08/23/13). A federal judge has awarded $3 million to the family of an 18-year-old Southern California teenager who was shot and killed by a plainclothes federal agent. The ruling stems from the fatal shooting of Zachary Champommier by a Drug Enforcement Administration special agent in a Studio City parking lot in 2010. Champommier, a recent high school honors graduate, had headed to the parking lot to meet a friend, who was being detained by plain clothes task force officers who suspected him of breaking into vehicles. Champommier struck a Los Angeles County Sheriff's deputy while driving his mother's vehicle. A DEA agent then fatally shot the teen. U.S. District Judge Michael Fitzgerald said shooting at Champommier while he was in a moving car would not have helped the predicament of the DEA agents, reports the Los Angeles Times. However, Fitzgerald also ruled that the authorities were not negligent in their actions.

Lumry v. State, ___ Kan.App.2d ___, ___ P.3d ____ (No. 108425, filed 08/16/13). Lumry, a former KBI agent, sued the KBI as well as three of his former supervisors in their individual capacities for violating his rights under the Fair Labor Standards Act (FLSA) and for retaliatory discharge in violation of the Kansas Minimum Wage and Maximum Hours Law (KMWMHL). Lumry was fired for padding his timesheets. In his civil suit, Lumry claimed he was fired in retaliation for his complaints about working uncompensated overtime in violation of the FLSA. See 29 U.S.C. § 215(a)(3) (2006). The Court of Appeals found the majority rule in federal courts is that public officials may be held liable in their individual capacities for violations of the FLSA if they are acting in the interest of the agency and meet the definition of an employer. It then held that two of the supervisors named in the suit did not meet the definition of "employer" under the FLSA, so Lumry's claims against them necessarily fail. As to Blecha, the undisputed facts failed to establish that Lumry made an unequivocal claim under the FLSA for which the Blecha may have retaliated. Finally, Lumry's claim under the KMWMHL failed because the KMWMHL does not apply to any employer that is subject to the FLSA. The Court affirmed summary judgment for the defendants. Standridge, concurring in part and dissenting in part, would have allowed Lumry to proceed on a common-law claim of retaliatory discharge.

Case name unknown, profiled in Findlaw 8/6/13. Some recipients of red-light camera tickets in New Jersey are set to receive compensation for their trouble after a class action lawsuit against 18 municipalities settled for $4.2 million. Included in the class action suit was the red-light camera operator, American Traffic Solutions (ATS), which the suit alleged had failed, along with the 18 New Jersey cities, to comply with the requirements of the state's Pilot Red Light Camera Program. The red-light camera class action suit against ATS and the New Jersey towns included almost 500,000 drivers, each of whom is expected to receive a minimum of 10 percent of their ticket costs from the settlement fund. With the tickets costing about $85, that means a payout of at least $8.50 per driver. Aside from the fact that many cities are finding the cameras a drain on municipal resources with little positive result, the New Jersey suit is based on allegations that the red-light cameras were erroneously giving tickets to drivers. Though ATS and the cities deny any liability in proceeding with the settlement, the lawsuit alleges that the cameras installed throughout the state were "not properly maintained" and issued tickets even when drivers didn't run a red light. Some ticketed drivers claim that they either coasted through on a yellow light or were attempting to make a right turn on red. This issue of proof is one of the many reasons why red-light tickets are legally difficult to defend and increasingly easier to fight.

Roosevelt-Hennix v. Prickett, ___ F.3d ___ (10th Cir. No. 12-1307, filed 05/16/13)(U.S. App. LEXIS 9809). A Colorado police officer used a Taser on plaintiff while her hands were cuffed behind her back and she was seated in the back seat of a police car. Plaintiff alleged excessive force. The officer claimed he was entitled to qualified immunity. Obviously, both sides had conflicting versions of the facts, but the district court denied summary judgment based on qualified immunity and the officer appealed. The Circuit affirmed, holding that there was evidence to support the Hennix's version of events. Some reminders worth noting: (1) officers should consider a person's ability to comply with commands prior to utilizing a Taser. This ability to comply may be the result of a medical condition, injury sustained while engaged with officers, or as the result of numerous Taser cycles; (2) in circumstances of mere passive resistance where there is no threat to the officers, a Taser is not an appropriate force option; and (3) In any use of force case, officers should consider (a) the seriousness of the crime at issue, (b) whether the suspect poses a threat to the officer or others, and (c) whether the suspect is actively resisting or attempting to evade arrest by flight.

Maracich v. Spears, 567 U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 12-25, filed 06/17/13). Lawyers who obtain, disclose, or use driver's license information solely to find clients to represent in an incipient lawsuit -- as opposed to evidence for use in existing or potential litigation -- are not protected under the under the litigation exception of the Driver's Privacy Protection Act (DPPA). The exception permits disclosure of personal information "for use in connection with any civil, criminal, administrative, or arbitral proceeding," including "investigation in anticipation of litigation." 18 U. S. C. §2721(b)(4). The Court held an attorney’s solicitation of clients is not a permissible purpose covered by the (b)(4) litigation exception. Excluding solicitation from the meaning of "in connection with" litigation draws support from (b)(4)’s examples of permissible litigation uses—"service of process, investigation in anticipation of litigation, and the execution or enforcement of judgments and orders"—which all involve an attorney’s conduct as an officer of the court, not a commercial actor.

Millbrook v. United States, 568 U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 11-10362, filed 03/27/13). Millbrook, a federal prisoner, sued the United States under the FTCA, alleging, inter alia, assault and battery by correctional officers. He alleged that he was forced to perform oral sex on a BOP correctional officer, while another officer held him in a choke hold and a third officer stood watch nearby. The District Court granted the Government summary judgment, and the Third Circuit affirmed, hewing to its precedent that the "law enforcement proviso," also known as the intentional tort exception (28 U. S. C. §2680(h)), applies and waives soverign immunity only to tortious conduct that occurs during the course of executing a search, seizing evidence, or making an arrest. Millbrook contended that the FTCA’s waiver is not so limited. The Supreme Court agreed and reversed, holding the law enforcement proviso extends to law enforcement officers’ acts or omissions that arise within the scope of their employment, regardless of whether the officers are engaged in investigative or law enforcement activity, or are executing a search, seizing evidence, or making an arrest. For some unknown reason, the Government had conceded that the correctional officer whose alleged conduct was at issue was acting within the scope of his employment.

Ellis v. City of Albuquerque, ___ F.Supp. ___ (D.N.M, decided 3/14/13, reported in Police Magazine 3/18/13). A Bernalillo County, N.M., jury awarded $10.3 million to the family of an Iraq War veteran who was shot and killed by an Albuquerque Police officer during a 2010 standoff. The verdict includes $2.7 million in punitive damages against Detective Brett Lampiris-Tremba and damages of $7.6 million against the city. Lampiris-Tremba's attorney told jurors the veteran detective made "the best decision he could" during a confrontation with Kenneth Ellis III in front of an convenience store. The detective fatally shot Ellis once in the neck while the veteran was holding a gun to his head. Deputy City Attorney Kathy Levy, who represented the detective, added that Lampiris-Tremba "accepts and understands the court's decision" that the shooting was unlawful. On Friday, Albuquerque Police Chief Ray Schultz announced his plans to retire from a department that has come under intense scrutiny following a federal civil rights probe.

Stricker v. Township of Cambridge, ___ F.3d ___ (6th Cir. No. 11-1998, filed 01/14/13). 911 medical emergency call creates "exigent circumstances" justifying warrantless entry and search of premises. In December 2008, Susan Stricker, an attorney and registered nurse, called 911 in Cambridge Township, Michigan. Her 20-year old son Andrew had overdosed on drugs, could not speak and was having difficulty moving. Andrew had previously been arrested on heroin charges, so Township police and officers from Lenawee County responded, along with EMS personnel. Andrew's parents initially allowed entry to their home, but once they realized that law enforcement personnel were among the group, they required all the responders to leave, locked their front door and claimed that their son was fine. As the evening progressed they became increasingly belligerent and refused to allow entry without a warrant. Police had observed Andrew in the house and determined that he was in a very precarious state. Ultimately, they broke down the front door. Officers conducted a sweep of the home and located Andrew hiding in the basement. He was taken to the hospital by EMS personnel, where he admitted to having used heroin and taken multiple Xanax capsules. His father was found trying to run down the basement stairs and his mother was located in a locked bedroom. Each was handcuffed and brought to the precinct house; they were initially charged with resisting arrest but the charges were dropped. The family brought suit under Section 1983 against the Township, the County, and various officers of the Township, the County and the State in their individual and official capacities, alleging Fourth Amendment violations including warrantless entry, unreasonable search, unreasonable seizure and arrest and excessive force. The Circuit affirmed summary judgment for the defendants. Defendants' warrantless entry into the home was constitutional due to "exigent circumstances." A substantial group of precedents including Brigham City v. Stuart , 547 U.S. 398 (2006) delineate that the officer's subjective intent is irrelevant if objective grounds exist to justify entry. A 911 call is an objective indication that emergency conditions exist within the home. A victim may need immediate assistance and medical personnel may need protection. Similarly, the sweep of the home did not violate the Fourth Amendment. Where the parents were acting aggressively and where a drug overdose was involved, protection of medical personnel and the need for more information about the drugs were justification for the officers' search of the premises. Plaintiffs' arguments that they had been arrested without probable cause were also unpersuasive. When they refused to cooperate with officers who had a legitimate need to enter the premises under exigent circumstances, and attempted to hide within the home to evade police, plaintiffs created probable cause for officers to conclude that they were obstructing lawful police activity. Finally, plaintiff's claims of excessive force failed. Pointing a gun or taser at persons who are actively trying to evade police capture is not proscribed. Handcuffing them, however "roughly," is not actionable unless some lasting injury results.

Swartz v. Insogna, ___ F.3d ___ (2d Cir. No. 11-2846-cv, filed 01/03/13). A passenger in a car saw an officer running radar, and to express his displeasure, flipped him the bird. The officer stopped the car and eventually arrested the passenger for disorderly conduct. The charge was ultimately dismissed on speedy trial grounds, then the passenger sued the officers for false arrest and malicious prosecution. The district court dismissed the suit, finding probable cause for the arrest. The Second Circuit reversed, finding the act of flipping the bird is neither reasonable suspicion for a stop, nor probable cause for an arrest. The Court held the law is clearly established, and the officers are not entitled to immunity. "Perhaps there is a police officer somewhere who would interpret an automobile passenger’s giving him the finger as a signal of distress, creating a suspicion that something occurring in the automobile warranted investigation. And perhaps that interpretation is what prompted Insogna to act, as he claims. But the nearly universal recognition that this gesture is an insult deprives such an interpretation of reasonableness. This ancient gesture of insult is not the basis for a reasonable suspicion of a traffic violation or impending criminal activity." See also Cook v. Board of County Commissioners, 966 F. Supp. 1049, 1052 (D. Kan. 1997) (denying motion to dismiss suit by automobile passenger arrested for disorderly conduct for giving the finger to a group of protesters, which included to police officer).

Civil Process

Fisher v. Decarvalho, ___ Kan. ___ (No. 104,644, filed 12/13/13), reversing Fisher v. DeCarvalho, 45 Kan. App. 2D1133, 1153, 260 P.3d1218 (2011). Fisher sued her doctor for malpractice on the last day of the statute of limitations and served him by mailing the summons and petition via unrestricted certified mail, sent to the doctor's business address. The doctor actually received the petition and filed an answer that asserted several affirmative defenses, including insufficiency of process, lack of personal jurisdiction, and a statute of limitations bar. The district court granted the doctor's motion to dismiss and Fisher appealed. Fisher argued she substantially complied with the service statute, and even if she did not, she was entitled to an additional 90 (or 120) days after the invalidity adjudication to effect valid service, as provided in K.S.A. 60-203(b). The Court disagreed with her on substantial compliance, but reversed and held that Fisher should have been afforded the opportunity, within the time limits set forth in K.S.A. 60-203(b), to attempt to effect a valid service of process after the district court's adjudication of invalidity. In doing so, the Court overrules Grimmett v. Burke, 21 Kan. App. 2d 638, 906 P.2d 156 (1995), rev. denied 259 Kan. 927 (1996).

Constitutional Law

State v. Cheeks, ___ Kan. ___, ___ P.3d ___ (No. 104858, filed 10/04/13). Jerome Cheeks was convicted in 1993 of second degree murder and sentenced to life in prison. He beat his wife to death with a hammer, then sodomized her with it. More than a decade later, he moved for DNA testing of about 30 evidentiary items. The district court denied his request, and Cheeks appealed, claiming that because K.S.A. 21-2512 allows such testing for first degree murder and rape, but does not allow it for second degree murder, it violates the Fourteenth Amendment's Equal Protection Clause. The Court, three justices dissenting, agreed, and reformed the statute to apply to second degree murder. See also State v. Denney, 278 Kan.643, 660, 101 P.3d 1257 (2004)(persons convicted of aggravated criminal sodomy also entitled to testing because it is indistingushible from rape).

U.S. v. Windsor, and Hollingsworth v. Perry, 567 U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 12-307, filed 06/26/13, and No. 12-144, filed 06/26/13). The Supreme Court agreed to review challenges to the Defense of Marriage Act (DOMA) and California's Proposition 8. In Windsor, 83-year-old plaintiff Edie Windsor left her house to her 44-year partner. Under federal tax law, a spouse who dies can leave assets, including the family home, to the other spouse without incurring estate taxes. DOMA Section 3, however, restricts the federal interpretation of marriage to heterosexual couples. Because the federal government did not recognize their marriage, the IRS taxed Windsor's inheritance from Spyer. Windsor sued to recover $353,053 in federal estate tax. The Second Circuit Court of Appeals applied heightened scrutiny to conclude that DOMA's classification of same-sex spouses was not substantially related to an important government interest. The court held that DOMA Section 3, which limits the federal definition of marriage to one man and one woman, violates equal protection. The United States Supreme Court, in a 5-4 decision, agreed. DOMA is unconstitutional as a deprivation of the equal liberty of persons that is protected by the Fifth Amendment.

          Hollingsworth involves a Ninth Circuit opinion which struck down Proposition 8, a state constitutional amendment banning same sex marriage, holding that it lessened the status and human dignity of gays and lesbians in California, reclassified their relationships and families as inferior to those of opposite-sex couples. The United States Supreme Court, in a 5-4 decision, held that Petitioners did not have standing to appeal the Circuit's order.

Controlled Substances

State v. Srack, ___ Kan.App.2d ___, ___ P.3d ____ (No. 107660, filed 12/13/13). Srack sold herbal potpourri containing a synthetic cannabinoid known as JWH-081, and was convicted of distribution of a controlled substances analog. K.S.A.2010 Supp. 21-36a05(a)(4). He claimed the statute was too vague to be enforced. The Court of Appeals disagreed, turning to the illuminating case of Cardarella v. City of Overland Park, 228 Kan. 698, 620 P.2d 1122 (1980). K.S.A. 2010 Supp. 65-4105(d)(33) specifically identifies JWH-018 as a hallucinogenic substance prohibited by law. It is uncontroverted that Srack sold the potpourri laced with JWH-081 for human consumption. The controlling factual issue at trial was whether JWH-081 was "substantially similar" in structure and effect to JWH-018. The Court concluded that K.S.A. 2010 Supp. 21-36a01 (b)(1) does impart fair warning to a person of ordinary intelligence that the sale of potpourri intended for human consumption with a substantially similar chemical structure and effect on the central nervous system as a schedule I controlled substance is prohibited by law.

DL Suspension

Rodewald v. Kan. Dept. of Revenue, ___ Kan. ___, ___ P.3d ___ (No. 105098, filed 03/22/13). A Potawatomi Tribal officer stopped the 18-year old Rodewald on the reservation and initiated a driver's license suspension when Rodewald tested at 0.046. The Supreme Court reversed, holding that KDOR had no statutory authority to suspend for acts that occurred on the reservation. The phrase "within this state" in K.S.A. 2007 Supp. 8-1001(a) and the phrase "in this state" in K.S.A. 8-1567a(a) are intended to mean locations in the state of Kansas that are within the jurisdiction of a Kansas law enforcement officer. Those phrases do not include the roadways—either public or private—within the Prairie Band Potawatomi reservation over which tribal police have assumed jurisdiction to enforce tribal law.

Pratt v. Kan. Dept. of Revenue, ___ Kan.App.2d ___, ___ P.3d ____ (No. 108204, filed 02/08/13). The arresting officer personally served Pratt with the DC-27 form but failed to check a box on the DC-27 form to indicate the manner of service, personal or mailed. Pratt alleged that deprived the Department of Revenue of jurisdiction to suspend his license. The Court of Appeals disagreed. While the DC-27 form includes a paragraph that allowed for the arresting officer to certify the manner of service, personal or mailed, there is no statutory requirement for such certification.

DUI

State v. Richmeier, ___ Kan.App.2d ___, ___ P.3d ____ (No. 109518, filed 11/22/13). Richmeier was drving drunk and got stopped. After a blood draw and upon returning to the jail, Richmeier asked to speak to a lawyer because he thought his "rights had been violated at that point." After posting his bond about 20 minutes later, Richmeir was released, but never called his attorney. The district court suppressed the blood-test results, finding the delay in providing Richmeier with access to a lawyer violated K.S.A. 2011 Supp. 8-1001(k)(9). The Court of Appeals reversed, finding the 15- to 20-minute delay did not deprive Richmeier of any of his rights in any meaningful way.

State v. Key, ___ Kan. ___, ___ P.3d ___ (No. 104651, filed 11/08/13). A defendant charged with felony driving under the influence (DUI) under K.S.A. 2007 Supp. 8-1567 may challenge before the district court the validity of a prior misdemeanor DUI used to classify the severity level of the current charge or to enhance the sentence following conviction on the current charge. However, if the defendant pleads guilty or no contest to the felony, the defendant will be limited on appeal to arguing the impropriety of the prior misdemeanor's effect as a sentencing enhancement. Under K.S.A. 22-3602(a), there is no appellate jurisdiction for a direct appeal of a felony conviction after a guilty or no contest plea. Key had two priors and challenged the State's reliance on one of his misdemeanor convictions, claiming his attorney in that case had filed a guilty plea without consulting him.

State v. Messer, ___ Kan.App.2d ___, ___ P.3d ____ (No. 108184, filed 08/23/13). K.S.A. 8-1004 just requires officers to give a "reasonable opportunity to have an additional test by a physician of the person's own choosing." Where an individual is released from custody by the OPPD about 45 minutes after taking the officer's requested test, they have a reasonable opportunity to obtain their own test.

Bixenman v. Kansas Dept. of Revenue, ___ Kan.App.2d ___, ___ P.3d ____ (No. 107661, filed 03/15/13, published 07/15/13). A Hays police officer stopped the 20-year old defendant for driving with one headlight and eventually arrested him for driving under the influence. Bixenman did pretty well on the field sobriety tests, but a PBT and subsequent breath test showed a bac between .02 and .08. Bixenman's license was suspended, but the district court set it aside, holding there was no probable cause to arrest Bixenman for DUI. The Court of Appeals reversed, finding probable cause to arrest for DUI is not a prerequisite for testing someone under 21 years of age. It reasoned that K.S.A. 8-1567a is a civil proceeding and imposes no criminal penalties, so a violation of K.S.A. 8-1567a is a separate and distinct offense from DUI as defined in K.S.A. 8-1567. All that is required for testing by K.S.A. 8-1001 and amendments thereto, is reasonable grounds to believe a person under 21 was operating or attempting to operate a vehicle while having alcohol. . . in such person ' s system; and one of the following conditions exists: "(A) The person has been arrested or otherwise taken into custody for any offense involving operation or attempted operation of a vehicle while under the influence of alcohol . . . , or for a violation of K.S.A. 8-1567a." Because K.S.A. 8-1567a is a civil offense with its own unique process, and not a criminal offense, an arrest is not a prerequisite to its enforcement. Bixenman was under the age of 21 and was driving with alcohol in his system. Bixenman had bloodshot eyes, alcohol on his breath, and admitted to consuming alcohol. The evidence was sufficient to support placing Bixenman in custody and reasonable grounds did exist to support the request for a breath test.

State v. Johnson, ___ Kan. ___, ___ P.3d ___ (No. 100864, filed 05/03/13, affirming 43 Kan.

App. 2d 815, 233 P.3d 290 (2010)). Johnson was convicted of misdemeanor driving under the influence and complained that his case should have been dismissed because the arresting deputy sheriff destroyed his field notes and failed to preserve the breath sample from the Intoxilyzer 5000, that, because the check lane was established in advance, the State was required to have a court - issued search warrant to conduct the Intoxilyzer 5000 breath test, the State failed to show that the Intoxilyzer 5000 complied with Kansas Department of Health and Environment (KDHE) regulations, and the court violated his constitutional right to confront witnesses by admitting KDHE certification evidence without the testimony of the person certifying those records. The Supreme Court did not buy any of it and affirmed. Test results lawfully obtained pursuant to K.S.A. 2007 Supp. 8 - 1001 are admissible in court as direct evidence of the defendant's blood - alcohol content in both driver's license suspension proceeding s and criminal prosecutions for DUI. See State v. Edgar, 45 Kan. App. 2d 340, 349, 246 P.3d 1013 (2011), aff'd in part and rev'd in part on other grounds, 296 Kan. ___, 294 P.3d 251 (February 1, 2013).

State v. Dennis, ___ Kan. ___, ___ P.3d ___ (No. 101052, filed 05/03/13). A Butler county officer stopped a known druggie who he suspected was driving on a suspended license. The druggie jumped out of the car, locked the doors and aggressively approached the officer. He was put in cuffs and admitted there was an open container in the car. The officer, pre-Gant, searched the car incident to the driver's arrest and found meth-making materials. The Court of Appeals refused to apply the good faith exception. The Supreme Court reversed. The search occurred prior to Arizona v. Gant, 556 U.S. 332, 129 S. Ct. 1710, 173 L. Ed. 2d. 485 (2009) and the outcome is contrary to State v. Daniel, 291 Kan. 490, 242 P.3d 1186 (2010), cert. denied 131 S.

Ct. 2114 (2011).

Missouri v. McNeely, 569 U.S. ___, 133 S. Ct. 1552, 185 L. Ed. 2d 696 (2013) (No. 11-1425, filed 4/17/13). Tyler McNeely was stopped for speeding about 2 a.m. by a Missouri highway patrol officer. When he stepped out of his car, the motorist was unsteady on his feet and failed the roadside sobriety tests. McNeely refused to provide a breath sample, so the officer drove him to a hospital where he ordered a lab technician to draw a blood sample from the suspect. McNeely, who had two prior convictions and was facing a felony charge, alleged the incriminating test results should be thrown out because the forced blood draw violated his rights. A trial judge agreed, and Missouri Supreme Court affirmed, ruling that police must obtain a search warrant before forcing a suspect to undergo a blood test. The United States Supreme Court affirmed, finding that DUI does not always justify the exigent circumstances exception to the warrant requirement. BAC evidence naturally dissipates in a gradual and relatively predictable manner, unlike situations where a suspect has control over easily disposable evidence. "[W]hile the natural dissipation of alcohol in the blood may support a finding of exigency in a specific case, as it did in Schmerber, it does not do so categorically. Whether a warrantless blood test of a drunk-driving suspect is reasonable must be determined case by case based on the totality of the circumstances." Slip opn. at 13.

State v. Sanchez, ___ Kan.App.2d ___, ___ P.3d ____ (No. 106828, filed 02/22/13). Sanchez, was riding in the passenger seat of her boyfriend's car. While arguing with her boyfriend, Sanchez grabbed the steering wheel, jerked it to the right, and caused the car to crash into a concrete barrier. She walked away from the accident, but a Highway Patrol trooper found her about a block away. Sanchez consented to the trooper's request for a blood test, which showed that her blood alcohol concentration was .21. The trooper also discovered that she had a suspended driver’s license. Sanchez was convicted of driving under the influence (DUI) and driving with a suspended license. She appeals her convictions, maintaining that she was not driving or operating the car when she grabbed the steering wheel. The Court of Appeals affirmed, finding that grabbing the steering wheel is "operating or attempting to operate" a vehicle as defined by K.S.A. 8-1416 & 8-1567.

State v. Edgar, ___ Kan. ___, ___ P.3d ___ (No. 103028, filed 02/01/13), affirming and reversing 45 Kan. App. 2d 340, 246 P.3d 1013 (2011). Edgar was stopped at a checklane, admitted to drinking and was asked to perform field sobriety tests and a PBT. He was eventually convicted of felony DUI (4th) and a DWS (3rd +) charge was dismissed. Edgar blew a 0.122 on the PBT and 0.110 on the breath test. He claims the PBT result should have been suppressed because he "passed" the field sobriety tests, so the officer had no reasonable suspicion to administer a PBT. He also claims the PBT was not voluntary because the officer told him he did not have a right to refuse. The Court of Appeals rejected these claims, holding that the admission of drinking, an odor of an alcoholic beverage and some clues on field sobriety tests give reasonable suspicion to administer a PBT. "In conducting a DUI investigation, a law enforcement officer is not required to reweigh reasonable suspicion after each field sobriety test. If reasonable suspicion exists at the outset of the investigation, an officer should be allowed to run the usual array of tests, within a reasonable number, to determine if the officer's reasonable suspicion leads to arrest or release of the person detained." The Supreme Court agreed, but it ultimately reversed on the PBT issue. The Court of Appeals had held that implied consent supplied by K.S.A. 8-1012 was sufficient for the PBT. The Supreme Court disagreed. It held the officer's statement that Edgar had no right to refuse the PBT made consent involuntary, and presumably the state did not meet its burden to show a valid warrantless search. Presumably concluding that there was no probable cause without the PBT result, the Court curiously held there was no valid alcohol related arrest, so the breath test should have been suppressed too. This case demonstrates the perils of: (a) defective PBT warnings; and (b) testimony about field sobriety tests being "pass" or "fail."

Employment

Smith v. Kansas Orthopaedic Center, P.A., ___ Kan.App.2d ___, ___ P.3d ____ (No. 109084 (filed 12/27/13). Smith accepted a position as a physical therapist with a specified salary and a "guaranteed bonus of $10,000." The parties disputed whether the promise of a bonus was merely for the first year of employment or a promise of a minimum bonus of $10,000 each year. The parties agreed that the relationship was that of at-will employment (employment which could be terminated at any time by the employee or the employer whether with or without notice). Smith worked her first year and was paid the specified bonus. The following year, the Center changed its bonus plan and provided Smith a copy. She understood the Center was changing its bonus policy and continued working for the Center until 2011 when she took a position elsewhere. Smith then sued, claiming the Center had guaranteed her a bonus of $10,000 for every year of her employment. The Court of Appeals rejected Smith's claim, noting that "the nature of at-will employment, i.e., that either party can end it at any time for any reason, has a corollary: either party can announce new terms to apply going forward." Further: "The power to terminate the employment relationship necessarily includes the power to change the terms of employment so long as it is done prospectively and the employee is notified of the changed terms." Because it was undisputed that (1) Smith was an at will employee, (2) the Center notified Smith of the changed compensation policy, and (3) the change was prospective only, it was held that Smith's decision to continue working after the change amounted to an acceptance of the new or changed compensation policy.

Evidence

State v. Sampson, ___ Kan. ___, ___ P.3d ___ (No. 102535, filed 05/03/13). Cops cannot sit at counsel table during a trial. "[B]ecause of the likelihood of this practice enhancing the officer's credibility with the jury, we hold today that a trial court may not permit a testifying law enforcement officer to sit at the prosecution's table during a jury trial. Further, while we recognize that a trial court retains discretion over decisions regarding the sequestration of witnesses, including whether to permit a testifying law enforcement officer to remain in the courtroom despite a sequestration order, we hold the trial court abused its discretion in permitting a testifying law enforcement officer to remain in the courtroom under the circumstances of this case."

State v. Everett, ___ Kan. ___, ___ P.3d ___ (No. 100529, filed 03/29/13). Everett was being tried for manufacturing methamphetamine, and this wasn't his first rodeo. He was on community corrections for a prior manufacturing charge at the time of trial. Everett introduced evidence through a community corrections officer that he was tested several times during the period alleged in the complaint and always tested negative. The state then elicited testimony that he was on community corrections for a prior manufacturing charge. The Supreme Court held that presentation of evidence that Everett was on probation at the time the current crime was committed does not open the door to rebuttal evidence regarding a prior crime that may be admitted independent of K.S.A. 60-455, and could not be admitted to prove the defendant's propensity to commit the crime charged. Finding the evidence sufficiently prejudicial, it reversed Everett's conviction. "This additional evidence was like putting a neon sign over Everett that read, 'propensity to manufacture methamphetamine.'"

Smith v. United States, 567 U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 11-8976, filed 01/09/13). Petitioner Calvin Smith was involved in a criminal drug distribution organization and imprisoned for a related murder in 1994. In 2000, a grand jury brought indictments against him. Smith defended his two conspiracy charges on the grounds that the statute of limitations barred his conviction because he had withdrawn from the conspiracy more than five years ago. The trial court directed the jury that the burden of proof was on Smith as defendant to prove withdrawal by a preponderance of the evidence. Smith claims his participation in the conspiracy during the statutory period is a necessary element of his crime that the government must prove. Additionally, since withdrawal and participation are mutually exclusive, his withdrawal would negate an essential element of the government's case against him. The United States argued that withdrawal is an affirmative defense, and the burden of proof lies with the defendant. The Court agreed with the government and affirmed the conviction.

Interrogation

Kansas v. Cheever, 568 U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 12-609, filed 12/11/13), reversing Kansas v. Cheever, ___ Kan. ___ . Cheever killed Greenwood County (Kan.) Matt Samuels on Jan. 19, 2005. Sheriff Samuels had gone to a house near Hilltop to locate Scott Cheever on illegal drug charges. Cheever opened fire on the sheriff and two deputies, killing the sheriff. At trial, Cheever testified that he shot Sheriff Samuels, but argued that he was intoxicated at the time and couldn't form intent. He was convicted of capital murder in October 2007 and sentenced to death, after a psychiatrist's evaluation concluded he was not drunk at the time of the shooting. On Aug. 24, the Kansas Supreme Court overturned the conviction and death sentence, agreeing with Cheever claim that the medical testimony violated his protection against self-incrimination. The U.S. Supreme Court did not agree, and revesred the Kansas Supreme Court's decision vacating defendant's murder conviction and death sentence. That decision is is vacated and remanded, where: 1) Buchanan v. Kentucky established that a State may introduce the results of a court-ordered psychiatric examination for the limited purpose of rebutting a mental-status defense; 2) defendant raised a voluntary intoxication defense, offering expert testimony regarding his methamphetamine use; 3) the Kansas Supreme Court erred in concluding that the Buchanan rule did not apply; and 4) the Fifth Amendment does not prohibit the government from introducing evidence from a court ordered mental evaluation of a criminal defendant to rebut that defendant's presentation of expert testimony in support of a defense of voluntary intoxication.

Salinas v. Texas, 568 U.S. ___, 133 S. Ct. 2174, ___ L.Ed.2d ___ (No. 12-246, filed 06/17/13). Salinas was a suspect in a homicide, was questioned in a non-custodial setting and was not given his Miranda warnings. During the course of the interview he chose not to answer some potentially incriminating questions. Salinas did not testify at trial, but the court allowed the interview, and the lack of answers, into evidence to show consciousness of guilt. Defendant's murder conviction is affirmed, where: 1) without being placed in custody or receiving Miranda warnings, defendant voluntarily answered the questions of a police officer who was investigating a murder; 2) defendant remained silent when asked by the officer whether a ballistics test would show that the shell casings found at the crime scene would match petitioner's shotgun; and 3) at trial prosecutors argued that his reaction to the officer's question suggested that he was guilty. A plurality found that petitioner's Fifth Amendment claim fails because he did not expressly invoke the privilege against self-incrimination in response to the officer's question.

State v. Randolph, ___ Kan. ___, ___ P.3d ___ (No. 103918, filed 05/10/13). Randolph raped a 6-year old girl. After Sunflower House interviews, Randolph voluntarily went to the police station for an interview. After waiving his Miranda rights, he was interrogated in two segments. The first segment lasted 1 hour and 15 minutes and was not recorded ; the second segment lasted about 15 minutes and was audio - recorded. Randolph confessed, but then claimed his confession should have been suppressed because of his low intellect. The Court disagreed. It held that even though Randolph could not pronounce "coercion," while reading it on the waiver form, he had no trouble understanding the word once it was pronounced and its meaning was explained. The lack of a recording of a portion of the interrogation was not fatal, but "the better practice and the one we advise is for law enforcement officers to record the entire interview with a suspect when they are planning to record parts of the interview and recording equipment is available. Finally, even if the detective suggested that Randolph's DNA was found on the victim (which he didn't); use of deception is allowable during an interview. See State v. Harris, 279 Kan. 163, 170, 105 P.3d 1258 (2005); Frazier v. Cupp, 394 U.S. 731, 739, 89 S. Ct. 1420, 22 L. Ed. 2d 684 (1969) (the fact that officers misrepresented statements made by defendant's companion was insufficient to render the defendant's confession inadmissible); State v. Harris, 293 Kan. 798, 811, 269 P.3d 820 (2012)(confession may be voluntary even when officers lie to defendant during an interview); State v. Wakefield, 267 Kan. 116, 126 - 28, 977 P.2d 941 (1999) (deceptive interrogation techniques do not establish coercion but are one circumstance that must be viewed in conjunction with the others present to assess totality of the circumstances ).

State v. Lawson, ___ Kan. ___, ___ P.3d ___ (No. 103509, filed 04/05/13). Lawson was convicted of two counts of aggravated criminal sodomy of a child less than 14 when he allegedly had oral and anal sex with a young boy who resided with him. He was arrested and Michael Mogenson was appointed to represent him during the first appearance on March 10, 2008. The next day, Officer Bridges took Lawson from his jail cell to the Leavenworth Police Department. Bridges obtained a Miranda waiver, administered a polygraph and Lawson confessed. Lawson would later say that he thought Bridges was his court - appointed attorney, and Bridges said he was unaware that Lawson had an attorney. The Supreme Court held the waiver invalid. After the statutory right to counsel has attached, the defendant's uncounseled waiver of that right will not be valid unless it is made in writing and on the record in open court. A Miranda rights waiver form , addressing the defendant's Fifth Amendment right to remain silent, simply cannot be an adequate substitute for the waiver procedure we require of our learned trial judges. A Miranda waiver form, signed by the defendant during a police-initiated custodial interrogation, is not a valid waiver of a defendant's entitlement to the assistance of counsel under K.S.A. 22-4503.

State v. Garcia, ___ Kan. ___, ___ P.3d ___ (No. 104998, filed 04/26/13). Sgt. Volle violated the suspect's rights by using coercive tactics and making promises of leniency that convinced the court made Garcia's confession not a product of the his free will. Detectives withheld medical treatment for a gunshot wound in Garcia's foot, and promised Garcia that if he confessed to involvement in an aggravated robbery, he would only be charged with the robbery, not murder. Garcia was convicted of felony murder. They also used his girlfriend to get him to confess.

State v. Swindler, ___ Kan. ___, ___ P.3d ___ (No. 104580, filed 02/15/13). Swindler raped the 11 year old daughter of his girlfriend's aunt. He agreed to a polygraph examination six days later. After about 3 hours and 20 minutes, in an interview/polygraph with the KBI and a Sumner County Sheriff's Officer, Swindler said, "I can't give you the details. I don't know when I did it. I'm done. I want to go home. I'm done." After a few more questions, a two-hour interview resulted in Swindler making incriminating statements, signing two written confessions, and drawing a diagram of his hand to show how far his middle finger had penetrated the victim's vagina. Swindler alleged his confession should be suppressed due to the officers failure to honor his invocation of the right to remain silent. The Supreme Court agreed. If found the statements were not voluntary, stating, "In short, the investigators set the rules of engagement and then did not hesitate to break them as soon as they thought Swindler might slip away without telling them what they wanted to hear. Under the totality of these circumstances, the State cannot carry its burden to show that Swindler's resulting oral confession, written confessions, and drawing were given voluntarily under the Fifth Amendment."

Jurisdiction

State v. Vrabel, ___ Kan.App.2d ___, ___ P.3d ____ (No. 108390, filed 06/14/14/13). A confidential informant (CI) advised Corporal Washington of the Prairie Village Police Department (PVPD) that Vrabel was selling hash. Cpl.Washington had the CI arrange to purchase hash from Vrabel at a grocery store in Leawood. Cpl. Washington did not know where Vrabel was when he spoke to the CI on the phone. The grocery store was selected because it was located on a main road into Missouri, where Vrabel lived, and was one of law enforcement's traditional buy locations. PV coordinated the buy with Leawood Lieutenant Kevin Cauley, but the opinion isn't clear on whether Cauley requested PV's assistance. Vrabel sold hash to the CI at the grocery store in Leawood. The state charged Vrabel with distribution of marijuana and use of a communication facility to sell a controlled substance. Vrabel filed a motion to suppress, arguing that PVPD unlawfully exercised its jurisdiction by "set[ting] up and investigat[ing] a crime" in Leawood. The district court granted the motion. The State filed an interlocutory appeal. The Court of Appeals reversed, holding that Prairie Village police officers were authorized to conduct a controlled drug buy in Leawood under the "request for assistance" exception in K.S.A. 2012 Supp. 22-2401a(2)(b). It found there was "at least an implied agreement for drug -buy assistance between the PVPD and the LPD." Malone, J., concurred, disagreeing that the "request for assistance" exception applied, but finding no violation of Vrabel's constitutional rights.

Jury Instructions

State v. Acevedo, ___ Kan.App.2d ___, ___ P.3d ____ (No. 107631, filed 11/22/13). Acevedo is a thief who was banned from Wal Mart. After entering Wal Mart and stealing again he was convicted of aggravated burglary and appealed, claiming the aggravated burglary instruction was erroneous. The Court of Appeals disagreed, and held it was unnecessary to specifically modify the phrase "without authority" in PIK Crim. 3d 59.18 with the word "knowingly." The PIK instruction is legally sound as written. Atcheson, J., dissents because he thinks the instruction didn't require the State to prove that Defendant knew he lacked authority to enter the Wal-Mart. Without knowledge, defendants could be placed on secret "lack of authority" lists maintained by stores and successfully prosecuted for aggravated burglary without knowing their actions would violate that statute.

Miscellaneous

Bowman v. Monsanto Co., 567 U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 11-796, decided 05/13/13). Bowman purchased Roundup Ready soybean seed for his first crop of each growing season from a company associated with Monsanto and followed the terms of the licensing agreement. But to reduce costs for his riskier late-season planting, Bowman purchased soybeans intended for consumption from a grain elevator; planted them; treated the plants with glyphosate, killing all plants without the Roundup Ready trait; harvested the resulting soybeans that contained that trait; and saved some of these harvested seeds to use in his late-season planting the next season. Bowman did so for eight seasons. After discovering this practice, Monsanto sued Bowman for patent infringement. Bowman raised the defense of patent exhaustion, which gives the purchaser of a patented article, or any subsequent owner, the right to use or resell that article. The District Court rejected Bowman’s defense and ordered Bowman to pay Monsanto $84,456 in damages. The Federal Circuit affirmed, as did the Supreme Court. Patent exhaustion does not permit a farmer to reproduce patented seeds through planting and harvesting without the patent holder’s permission. By planting and harvesting Monsanto’s patented seeds, Bowman made additional copies of Monsanto’s patented invention, and his conduct thus falls outside the protections of patent exhaustion. Were this otherwise, Monsanto’s patent would provide scant benefit. After Monsanto sold its first seed, other seed companies could produce the patented seed to compete with Monsanto, and farmers would need to buy seed only once.

Dan’s City Used Cars v. Pelky, 568 U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 12-52, filed 05/13/13). Pelky alleged that Dan’s City Used Cars (Dan’s City), a towing company, took custody of his car after towing it from his landlord’s parking lot with out Pelkey’s knowledge, failed to notify him of its plan to auction the car, held an auction despite Pelkey’s notice that he wanted to reclaim the car, and eventually traded the car away without compensating Pelkey for the loss of his vehicle, all in violation of New Hampshire statutes. The district court granted summary judgment to Dan’s City, concluding that the FAAAA preempted Pelkey’s claims. The Federal Aviation Administration Authorization Act of 1994 (FAAAA) preempts state laws “related to a price, route, or service of any motor carrier . . . with respect to the transportation of property.” 49 U. S. C. §14501(c)(1). Exempted from preemption are state laws “relating to the price” of “vehicle transportation by a tow truck,” if towing occurs without prior consent of the vehicle owner. §14501(c)(2)(C). The New Hampshire Supreme Court reversed. It held the FAAAA’s preemption clause inapplicable because Pelkey’s claims related to Dan’s City’s conduct in disposing of his car post-storage, not to conduct concerning “the transportation of property,” or a towing company’s “service.” The Supreme Court affirmed. Pelkey’s state-law claims escape preemption because they are “related to” neither the “transportation of property” nor the “service” of a motor carrier. Although §14501(c)(1) otherwise tracks the ADA’s air-carrier preemption provision, the FAAAA formulation’s one conspicuous alteration—addition of the words “with respect to the transportation of property”—significantly limits the FAAAA’s preemptive scope. The Court holds that 49 U. S. C. §14501(c)(1) does not preempt state-law claims for damages stemming from the storage and disposal of a towed vehicle.

Privacy

Rashid v. State, ___ Ga. ___, S12A1698, 2013 Ga. LEXIS 63 (1/22/13). The Supreme Court of Georgia upheld admission in court of a recorded conversation between the suspect and family members in the police interview room after a Miranda violation. Rashid, an immigrant from Pakistan, killed his daughter. Police interrogated him, but violated Miranda so his statements were inadmissible. After the interview, Rashid asked to speak with his family. The recording equipment in the interview room was still on when Rashid met with family members. Rashid, speaking in Urdu and Punjabi, repeatedly admitted to killing his daughter because she was defying him by pursuing a divorce, stating, inter alia, "I could not tolerate it, that my daughter confronted me in this way." Describing the act of the murder itself, he said, "There was no noise; those who want to get things done, do it silently." He further explained, that had his daughter survived his attack, "she was so filthy, she would have put me in jail." Those statements were admitted against him. Rashid alleged that their admission violated his right to privacy. The Court held there was no expectation of privacy because the statements were made while Rashid was in handcuffs in a police interrogation room. Even if he expected his statements to family members would be private, his expectation was unreasoanble. The Court also found this family conversation was not tainted by the prior police interrogation.

State v. Strong, 2013 ME 21, ___ N.E. ___ (No. Yor-13-55, filed 02/15/13). Maine’s top court has upheld the dismissal of 46 charges against a businessman accused of taping a prostitute’s sexual encounters, holding that the johns have no reasonable expectation of privacy under a state law banning recording in private places. Mark Strong was accused of videotaping people who paid to have sex with dance instructor Alexis Wright, who his was his business partner in a Zumba dance studio in Kennebunk. He still faces accusations that he promoted prostitution. “Places of prostitution and people who knowingly frequent them to engage a prostitute are not sanctioned by society,” the court said. “Accordingly, it is objectively unreasonable for a person who knowingly enters a place of prostitution for the purpose of engaging a prostitute to expect that society recognizes a right to be safe from surveillance while inside.”

Red Light Cameras

People v. Goldsmith, ___ Cal. ___ (No. S201443, filed 6/5/14). The California Supreme Court held, in a unanimous published decision, that evidence generated by an automated traffic enforcement system (ATES, otherwise known as a "red light camera") was adequately authenticated by a police officer’s testimony and did not constitute hearsay. The Court concluded that the standard foundational showing normally used to authenticate photographs, videos and other writings is also sufficient to authenticate ATES-generated evidence. The Court specifically rejected the argument that the testimony of an ATES technician or other witness with special expertise in ATES computers was required to authenticate ATES evidence. A law enforcement investigator from the enforcing agency has sufficient knowledge to authenticate the evidence. Furthermore, since evidence generated by an ATES is not a "statement," the evidence does not constitute hearsay. Thus, use of such evidence does not implicate confrontation clause issues. The defendant in Goldsmith was cited for failing to stop at a red traffic light in the City of Inglewood. The evidence presented against her included several photographs — all imprinted with a bar code reflecting the date, time, location and how long the light was red at the time of the photo — and a 12-second video, all generated by an ATES. Only one witness testified at her trial: Dean Young, an investigator with the Inglewood Police Department assigned to the traffic division in red light camera enforcement. Young testified, among other things, that Inglewood’s ATES was operated by the Police Department but maintained by Redflex Traffic Systems, Inc., and that the computer-based digital camera system operates “independently” and records events that occur within an intersection after the light turns red. The trial court ultimately found the defendant was guilty of failing to stop at a red light, and the conviction was upheld on appeal. The Supreme Court granted review to consider whether the trial court properly admitted the ATES evidence over the defendant’s objections of inadequate foundation and hearsay.

Edward v. City of Ellisville, ___ Mo.App. ___ (No. ED99389, filed 11/05/13). Appellants received violation notices from Ellisville stating that they violated Ellisville’s red light camera ordinance because a motor vehicle owned by them was present in an intersection while the traffic light was emitting a steady red signal. Appellants challenged the validity of the Ordinance in an eight-count petition. The trial court dismissed their claims. The Court of Appeals reversed, holding the ordinance is void because it conflicts with state law. The ordinance makes vehicle owners liable for red light violations, regardless of whether the owner was driving at the time. State law prohibits red-light running only by drivers of vehicles and pedestrians, and requires assessment of points against violators. Because Ellisville's ordinance expands liability and makes red light tickets non-moving, it conflicts with state law, is void and unenforcable.

Restitution

State v. Hall, ___ Kan. ___, ___ P.3d ___ (No. 102297, filed 06/28/13), affirming 45 Kan. App. 2d 290, 247 P.3d 1050 (2011). Hall stole from a veterinary clinic where she worked. She was convicted of theft and computer crime. Johnson County Judge Davis initially ordered Hall to pay about $10,000 in restitution. Defense counsel argued the amount was too much, and indicated he may challenge the amount at a later hearing. Judge Davis told him that any challenge should be filed within 30 days. After defendant filed her challenge, the judge ordered restitution of about $15,000. Hall contended the trial court did not have jurisdiction to increase the amount, and argued that retail value of the items stolen was an improper measure of the restitution amount since the clinic bought the items at wholesale prices. The Court of Appeals held that jurisdiction was properly reserved on the restitution amount, but agreed with Hall on the retail v. wholesale amounts. It said the assumed lost profit should not be included in the fair market value to be awarded as restitution. The Supreme Court focused on whether retail cost or wholesale cost is the appropriate measure of loss for determining restitution for stolen inventory, and concluded the answer should be: "It depends." It rejected a bright - line rule favoring either retail or wholesale cost and said the sentencing judge must evaluate the evidence, weigh all factors, and consider the facts and circumstances of each case to determine a value that will compensate the victim for the actual loss caused by the defendant's crime. It remanded for reconsideration of the restitution award.

Search and Seizure

United States v. Willis, ___ F.3d ___ (10th Cir. No. 12-5166, unpublished, filed 10/4/13). A complainant called 911 and stated that there was a man with a gun outside her house in a disturbance. She stated that the man was a black male and was wearing a gray shirt. The complainant also provided the 911 operator with her name and address. Officers immediately responded to the call and within one block of the dispatch location, the officers observed two men walking down the road. One, later identified as Willis, was a black male wearing a gray shirt. The officers stopped Willis and immediately discovered a gun and the fact that he was a convicted felon. He was arrested for being a felon in possession of a firearm. Willis, a convicted felon, alleges the stop was bad and argued a lack of reasonable suspicion. The Circuit held that while the description was fairly generic, it was so close in time and proximity to the call and there were so few people out at this time, that the description was sufficient to establish reasonable suspicion. The court noted that Terry v. Ohio, was also based on fairly generic facts, stating, "it would seem odd to expect law enforcement not to follow up a citizen's complaint." But see United States v. Jones, 998 F.2d 883 (10th Cir. 1993)(tip was two men in a black Mercedes, but black Mercedes officers stopped was quite a ways away and caller's information did not quite match up).

Clark v. Indiana, (No. 20S05-1301-CR-10, filed 09/17/13). Officers were called to investigate men possibly living in a storage unit. An officer approached the men and immediately told them to "have a seat." He later searched the men (with consent) and one of their cars after smelling the odor of marijuana and discovered part of a mobile methamphetamine lab. The court held the consent came during an illegal detention. Once the officer required the men to sit on the ground so he could respond more quickly to their movements — once he employed his authority to control and restrict their freedom to depart — the encounter moved past what would be considered "consensual." No reasonable person would have believed they were free to simply get up and walk away under those circumstances. Because they were detained without reasonable suspicion, it was an illegal detention. Civil standbys are not a criminal investigation. It would be the same as a landlord asking the police to accompany him as he asked a tenant for back payment on rent, or sought to enforce some common provision of a rental agreement like not having a grill on the balcony. Simply because the police are willing and available to be present does not mandate turning an otherwise civil matter into a criminal investigation.

State v. Phillips, ___ Kan.App.2d ___, ___ P.3d ____ (No. 108949, filed 12/13/13). Lenexa police made contact with two suspicious characters in a parking lot of a motel. After consensual pat-downs and a consensual car search failed to turn up anything illegal, officers obtained consent to look around the mens' motel room. They found methamphetamine and arrested Phillips. He alleged he was illegally detained, therefore his consent was invalid. The Court of Appeals agreed, holding the officer did not have reasonable suspicion to detain, and the length of time and number of officers present (18 minutes and 3, respectively), would indicate to a reasonable person they were not free to leave.

State v. Hensley, ___ Kan. ___, ___ P.3d ___ (No. 102055, filed 12/06/13). Hensley's jilted ex-girlfriend police and told them Hensley had a large amount of marijuana in his freezer (she saw the day before) and she believed Hensley had a handgun. Based on this and other information, officers obtained a warrant and found 200 grams of marijuana in Hensley's freezer, a folding lock blade knife, a baggie of marijuana, a pipe, rolling papers, and a marijuana roach with blunts. Hensley alleged the warrant should not have issued because the information provided in the affidavit tip was stale and/or not worthy of belief, thus his convictions for possession of marijuana, possession of marijuana with no tax stamp affixed, and possession of drug paraphernalia should be reversed. The Court disagreed, holding that while some of the historical information was stale, there was sufficient probable cause supported by non-stale information with an indicia of reliability. However, conviction of both possession of marijuana and possession of marijuana with no tax stamp are multiplicitous and violated K.S.A. 21-3107(2)(b)'s prohibition against a person being convicted of both a greater and lesser crime. The Court reversed Hensley's conviction and sentence for possession of marijuana.

United States v. Ponce, ___ F.3d ___ (10th Cir. No. 12-5032, filed 10/30/13). The Tenth Circuit has ruled that, even without probable cause, the good faith exception applies to a search warrant. Julio Ponce appealed the Oklahoma district court's denial of his motion to suppress evidence obtained pursuant to a search warrant that Ponce alleges was issued without valid probable cause. A Tulsa police officer submitted an affidavit for a search warrant to search Ponce's residence in 2011. After the officer received information from an informant that Ponce was selling meth from his home, the officer verified this information by conducting his own surveillance and walking his drug dog, Buster, along Ponce's garage door. Buster alerted for the odor of narcotics. To verify the alert, officers walked Buster along other garage doors in the neighborhood, but received no more alerts. After officers submitted the affidavit, the magistrate issued a search warrant which led to the discovery of large quantities of cash, meth, firearms, and other illegal items in Ponce's residence. The Circuit applied the good faith exception from Leon. The officer had an objectively reasonable belief that the dog's drug sniff was permissible and the affidavit was sufficient. The officer reasonably used a qualified dog, led the dog to the door where he then "provided sufficient corroboration of the veracity and reliability of his informants justifying the issuance of the search warrant." Even if the warrant was defective, the officer was entitled to rely on the warrant issued by the magistrate. Noting that later Supreme Court precedent in Florida v. Jardines, 133 S. Ct. 1409 (2013), suggests the dog sniff may have been illegal, the Court held that at the time the search occurred the officer had a good faith basis for believing it was legal.

State v. Miller, ___ Kan.App.2d ___, ___ P.3d ____ (No. 109354, filed 09/13/13). A trooper stopped Miller because he thought she drove onto I-35 after it had been closed due to an accident. In actuality, the officers that had been blocking the entrance ramp had been temporarily deployed elsewhere. Unfortunately for Miller, she was intoxicated, which the trooper noticed after stopping her. Judge Cameron held the trooper's mistaken belief the highway was closed was an insufficient reason to stop her and suppressed all the DUI evidence. The Court of Appeals reversed. It agreed with the state's argument that an officer's action isn't invalidated for a mistake of fact so long as the officer had a reasonable belief that facts existed that would have justified the traffic stop. Based upon what the trooper knew at the time, he believed that Miller had violated K.S.A. 8-1503 by refusing to comply with an officer's traffic - control directives. "We should point out, however, that an officer can make one type of mistake that won't provide reasonable suspicion, and that's a mistake of law. Officers are charged with knowledge of the law, and they don't have reasonable suspicion to stop someone when they mistakenly believe that there' s a law that a person's actions would have violated when, in fact, such a law doesn't exist." The court declined Miller's invitation to apply the collective - knowledge doctrine.

State v. Jefferson, ___ Kan. ___, ___ P.3d ___ (No. 98742, filed 09/06/13). Jazwane Jefferson and others shot and killed Deborah Jackson in a KCK drive-by shooting. According to Jefferson, on the day of the shooting, he and his associates armed themselves with guns before getting into a white van and shooting up Jackson's house. It was the last in a series of shootings that day. About a month after the shooting, detectives Lawson and York developed Jefferson as a suspect and went to his apartment complex to chat with him. When they arrived at the complex, they observed Jefferson's car parked in the parking lot with the engine running, and they saw a person they believed to be Jefferson walking towards the car. After issuing a greeting, Jefferson fled on foot. After an unsuccessful foot chase, Lawson and York returned to the apartment complex parking lot about 15 minutes later and found that Jefferson's car engine had been turned off and the keys had been removed. They impounded the car. York placed a card on Jefferson's apartment door with the following handwritten message: "Jazwane, if you want your car back, please give me a call. We can talk, York." The Court held there was no probable cause to seize the car. Although State v. Sanchez - Loredo, 294 Kan. 50, Syl. ¶ 4, 272 P.3d 34 (2012) allows warrantless seizure, there must be a 'fair probability' that the vehicle contains contraband or evidence [of a crime]." 294 Kan. at 55. If law enforcement officers have probable cause to search a vehicle at the scene, they also have probable cause to seize the vehicle and search it at a later, more convenient time. See 294 Kan. at 56 - 57 (agreeing with Chambers v. Maroney, 399 U.S. 42 , 52, 90 S. Ct. 1975, 26 L. Ed. 2d 419 [1970] , that if probable cause exists there is no significant distinction "'between on the one hand seizing and holding a car before presenting the probable cause issue to a magistrate and on the other hand carrying out an immediate search without a warrant '"); State v. Taylor, 217 Kan. 706, 710 - 11, 538 P.2d 1375 (1975)("I f the police had probable cause to search the truck at the time it was discovered and defendant arrested, they had probable cause to impound it and search it at a later, more convenient time "). Summing up the lack of connection between Jeffrson's car and the shooting,, the court said, "there is simply no evidence in the record linking the shooting to Jefferson's vehicle." The Court also held the State failed to establish under the totality of the circumstances that Jefferson's statements were sufficiently attenuated from the preceding illegal seizure, and accordingly reversed and remanded with directions to grant Jefferson's Motion to Suppress his confession.

State v. Bierer, ___ Kan.App.2d ___, ___ P.3d ____ (No. 109330, filed 09/06/13). A postal inspector located a suspicious package and called Johnson County deputies, who conducted a dog sniff and received an alert. They obtained a search warrant for the residence the package was to be shipped to, then put it on the front porch and waited for someone to take it inside. Instead, Bierer drove up, grabbed the package and put it in his car and drove away. Deputies stopped the car, searched the package and found marijuana. Bierer alleges the search was illegal. The Court of Appeals disagreed, holding the stop was based on probable cause, and the search of the package was a valid search of a container under the automobile exception, California v. Acevedo, 500 U.S. 565 (1991).

Floyd v. City of New York, ___ F.Supp.2d ___ (U.S.D.C. S.D.N.Y., No. 08-Civ.-1034(SAS), filed 8/12/13). A Manhattan federal judge ruled that New York police violated the Constitution when they targeted "the right people" with stop-and-frisk tactics. Minorities were disproportionately targeted under policies that encouraged more police stops to combat crime, "A police department may not target a racially defined group for stops in general—that is, for stops based on suspicions of general criminal wrongdoing—simply because members of that group appear frequently in the police department’s suspect data." The stop and frisk policy violated the the Fourth Amendment’s ban on unreasonable searches and the 14th Amendment’s equal protection clause. As a remedy, the judge appointed lawyer Peter Zimroth of Arnold & Porter to monitor police conduct. The judge reviewed statistics on 4.4 million police stops made between January 2004 and June 2012, and said a forms database indicated at least 200,000 were made without reasonable suspicion. Officers were pressured to increase their stops, and the city did nothing when notified that the stops were being made in a racially skewed manner, she wrote. Supervisors routinely reviewed the productivity of officers, but did not review the facts cited to justify such stops to determine whether they were legally sufficient. Scheindlin also noted an unwritten policy for police to target "the right people" for stops. " According to Scheindlin’s opinion, 52 percent of the 4.4 million police stops were followed by a frisk for weapons. A weapon was found after 1.5 percent of those frisks. In 52 percent of those 4.4 million stops, the person stopped was black; in 31 percent the person was Hispanic; and in 10 percent the person was white. Weapons were seized in 1 percent of the stops of blacks; 1.1 percent of the stops of Hispanics; and 1.4 percent of the stops of whites. Contraband other than weapons was seized in 1.8 percent of the stops of blacks; 1.7 percent of the stops of Hispanics; and 2.3 percent of the stops of whites. Scheindlin illustrated poor police training by citing differing testimony on what constituted “furtive movements” used to justify stops. One officer said it could mean changing direction, walking a certain way, being fidgety, stuttering, looking back and forth, adjusting a hip or belt, grabbing at a pocket, acting a little suspicious, going in and out of a location, and moving into and out of a car too quickly. A nother said it could mean hanging out in front of a building or sitting on benches and then making a quick movement, such as bending down or going inside the lobby, or suddenly becoming very nervous and very aware.

Prologue: The judge also ruled that NYPD officers in the five precincts with the most stop-and-frisks must begin wearing on-officer video systems to prevent inappropriate behavior. Mayor Bloomberg has vowed to appeal.

UPDATE: Judge Scheindlin's opinion has been stayed pending appeal, and the 2nd Circuit held that Judge Scheindlin violated judicial canons 2 and 3, so it reassigned the cases upon remand.

Another Update: 08/07/14 - According to PoliceMag.com, the new Mayor has dismissed the appeals.

Another Update: 11/04/14 - The 2d Circuit denied the Union's attempt to intervene. This appearsa to end the matter.

State v. Althaus, ___ Kan.App.2d ___, ___ P.3d ____ (No. 106813, filed 08/02/13). Judge Achison, writing for the majority, reverses a district court decision denying a motion to suppress for lack of probable cause in the search warrant affidavit. Reno county police were investigating three people for methamphetamine distribution. The affidavit basically said they observed Althaus at one of the target's residence, then go to a storage unit, where he stayed for about one minute. There was no clear explanation how officers knew that Althaus was involved in methamphetamine districution, or why police thought there would be drugs in his house. Despite the lack of facts and circumstances, a magistrate issued a warrant. The Court of Appeals refused to apply the Leon good faith exception. The application for the warrant was without any factual basis for the search of Althaus' home, a defect a reasonable law enforcement officer would have immediately recognized.

United States v. Mongold, ___ F.3d ___ (10th Cir. Nos. 12-7073 & 7075, filed 07/10/13, upublished), 2013 U.S. App. LEXIS 13943. ATF agents entered Ms. Moore's residence without consent after they smelled the odor of burnt marijuana while on a knock & talk. Mongold, a convicted felon (and resident) answered the door. Officers asked for Ms. Moore and Mongold said he would get her. Officers followed him in and saw ammunition in the residence. An officer directed the home's four residents-Ms. Moore, Mr. Mongold, and Ms. Moore's two adult children-onto the front porch. The officer notified the residents that he had smelled marijuana and had seen ammunition in the home. He then informed them of their Miranda rights and asked them each to sign a form consenting to a search of the home. All four occupants consented. During the search, officers found a small amount of marijuana, drug paraphernalia, bags containing white powder, ammunition, a shotgun, and a revolver. Moore and Mongold argued the evidence should be suppressed due to the illegal entry and the coerced consent. The Tenth Circuit agreed. The Circuit held that the likely presence of marijuana supplied probable cause, but held that due to the misdemeanor nature of the crime, it would not supply exigent circumstances excusing a warrantless entry. Additionally, officer safety reasons would not supply exigent circumstances because the government presented no evidence that the officers had "reasonable grounds to believe that there [was] immediate need to protect their lives or others." Turning to whether the consents were valid, the Circuit held the district court did not make factual findings concerning a possible "break" in the causal connection, and remanded the case to district court for a ruling on this issue.

United States v. Bausby, ___ F.3d ___ (8th Cir. No. 12–3212, filed 07/11/13). A motorcycle in a Kansas City, MO front yard displaying a "For Sale" sign was not within the curtilage. A concerned citizen thought he spotted a stolen motorcycle in defendant chain-link fenced front yard. Police entered the yard and subsequently obtained a search warrant for the house. While searching the house they found a 12-gauge shotgun, which was bad for Bausby, a convicted felon. Two judges decided that the yard was not curtilage because the open display of the motorcycle with the "for sale" sign invited the public to enter the yard and knock on the front door. "An implicit license typically permits the visitor to approach the home by the front path, knock promptly, wait briefly to be received, and then (absent invitation to linger longer) leave." One judge believed the yard was curtilage due to the location, fence, telephone number, and a “Beware of Dog” sign on the fence. Still, all three judges decided that the police could pass through the unlocked, unchained gate and enter the yard to knock on the front door and inquire about the motorcycle. The trend is to allow "plain view," "knock and talk," and "implied invitee entry” warrantless entries into the curtilage.

State v. Brewer, ___ Kan.App.2d ___, ___ P.3d ____ (No. 107829, filed 07/12/13). A police officer noticed two potential traffic offenses (excessive window tint and altered tag) related to the vehicle that Brewer was driving. The officer followed the vehicle for a few minutes until it stopped in a driveway. Brewer, who had exited and locked the car, appeared to not want anything to do with the car, had to be convinced to return to it to obtain his insurance information. The officer made contact with Brewer and ultimately conducted an exterior air sniff of the vehicle using a K - 9 dog that was riding in the officer's vehicle . The K - 9 exhibited behavior changes indicating an alert to the odor of drugs. During a subsequent search of the interior of the vehicle, the officer found substances that appeared to be marijuana and methamphetamine. Brewer claimed the evidence should have been suppressed because the officer lacked reasonable suspicion to conduct a traffic stop and lacked probable cause to conduct a warrantless vehicle search. He claimed the State failed to provide documentation that the K - 9 was certified at the time of t he exterior air sniff and that the K - 9's training records and reports indicated a much higher rate of false positives than the 10 percent estimate given by the handler at the hearing on the motion to suppress. The Court of Appeals affirmed denial of Brewer's motion to suppress, finding the K - 9 and its handler underwent regular monthly training together during the relevant time frame and documentation showed that they had completed a training session just 9 days before the exterior air sniff. The evidence of the K - 9's certification and regular training provided the necessary foundation to establish that the dog's "alert" provided probable cause to search the vehicle.

Maryland v. King, 567 U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 12-207, filed 06/03/13). Police took a DNA sample from Alonzo Jay King Jr. after his 2009 arrest on assault charges. King was later convicted in an unsolved rape case from 2003. Maryland's law, which went into effect in 2009, expanded the collection of DNA samples from those convicted of crimes to those who have been arrested for violent crime or burglary, even if they were not found guilty. The Maryland Court of Appeals overturned King's rape conviction in April, ruling that the collection of DNA evidence violated his Fourth Amendment rights and constituted a warrantless seizure. The U.S. Supreme Court reversed, holding that DNA collection is not unreasonable because it is done for identification purposes.

United States v. Rigmaiden, ___ F.Supp.2d ___ (No. ____ USDC AZ 03/13/2013). Rigmaiden operated a number of scams that included identity theft and filing for income tax refunds he wasn’t entitled to. Nearly all of his activities were conducted online, using a laptop and a wireless “aircard” that sent and received data over the cellular network. He was quite successful at this, filing more than 1,200 fraudulent tax returns and collecting more than $3 million in tax refunds. An IRS eFile provider notified the IRS that an unusually large number of returns had been filed through its website by a single person. IRS agents researched the IP addresses used by this filer and tied it to an aircard subscribed to Verizon and purchased by Travis Rupard in San Jose (Calif.). Rupard turned out to be a false name associated with a non-existent address and a California driver’s license number assigned to a woman. Rigmaiden was caught, in part, through the use of a StingRay device. The StingRay and some related products with similarly icthyological names like KingFish and AmberJack are produced by Harris Wireless Products Group of Melbourne, Florida. A StingRay mimics a cell phone tower and pings cell phones within its range for a signal. By measuring the signal strength, the operator can determine the approximate location of the cell phone. All of this happens without the knowledge of the cell phone’s owner or the cellular network the phone uses. The device is reportedly about the size of a shoebox and is easily transported to wherever it’s needed. It’s not used for monitoring the conversations or text messages sent to or from the phone. Rigmaiden sought to suppress the information supplied by the device on the grounds that the search warrant requested by the FBI was not specific, failing to properly describe what information was sought and the way the FBI intended to get it. Rigmaiden said the government failed in their "duty of candor" to fully inform the judge issuing the warrant of what they intended to do. The trial judge denied that motion. The lesson here, if there is one, is for cops to be forthcoming when seeking search warrants using technology that may be unfamiliar to the issuing judge.

State v. Ewertz, ___ Kan.App.2d ___, ___ P.3d ____ (No. 107297, filed 06/07/13). An officer stopped Ewertz's car for no tail lights and failure to maintain a single lane. After the stop, the officer noticed the usual indicators of impaired driving. After conducting field sobriety testing, he arrested her, secured her in his patrol car, then searched her car incident to arrest, suspecting that it may contain open containers. He found meth instead. Ewertz claimed the search was illegal. The Court of Appeals disagreed, finding it was a valid search incident to arrest, or in the alternative, a valid plain view exception (a meth pipe was clearly visible in a pink makeup bag on the passenger floorboard when the officer went to retrieve Ewertz's purse.)

Carroll v. County of Monroe, ___ F.3d ___, 2013 U.S. App. LEXIS 4940 (2d Cir. No. 12-975, filed 03/12/13). Narcotics officers executed a "no-knock" warrant for the plaintiff's home. The first officer in saw a dog growling, barking, and quickly and aggressively approaching him. Once the dog had advanced to within a foot of him, the officer fired one shot and killed the dog.

Plaintiff sued, alleging the force used against the dog was excessive. He claimed the agency failed to train its officers regarding non-lethal means to secure dogs and to formulate a plan to restrain the plaintiff's dog using non-lethal means. The 2d Circuit noted that unreasonable killing of a companion animal constitutes an unconstitutional "seizure" of personal property under the Fourth Amendment, but held the shooting in this case was reasonable under the circumstances. The court found that even if there was a contingency plan to deal with the dog with less-lethal means, the deputy may have still needed to shoot the dog under the facts of this case. However, the Court did offer a word of advice to law enforcement:

As a cautionary note, however, we do not mean to endorse the defendants' apparent position that the failure to plan for the known presence of a dog is always acceptable when the police are executing a no-knock warrant. We merely decide that under the particular facts of this case, especially given the high burden that a party must meet to successfully challenge a jury verdict, the jury was not unreasonable to conclude that the plaintiff did not meet her burden of proof. There may very well be circumstances under which a plaintiff could prove that lack of an adequate plan rendered the shooting of his or her dog unreasonable even during execution of a no-knock warrant, and we urge the defendants to consider whether more comprehensive training and planning would better serve the public, as well as its officers, in the future.

In a footnote, the court also noted that the particular deputy that shot the dog in this case had shot two other dogs while executing search warrants, and stated that this set of facts indicates that officers encounter these situations more frequently than they would probably prefer and that planning and training,-while not always constitutionally required, "may be advisable to avoid future tragedies and future litigation."

State v. Campbell, ___ Kan. ___, ___ P.3d ___ (No. 101860, filed 05/03/13). An officer investigating a noise complaint regarding a car located the car in an apartment complex parking lot. He ran the tag and it returned to an apartment resident. The officer went to the apartment and just in front of it, smelled burning marijuana coming from an open window. He covered the peephole and bladed his body away from the door so he could force it open if necessary. The resident opened the door with a gun in his hand, then tried to slam the door. The officer forced entry and Campbell was convicted of drug charges. The Supreme Court held the warrantless and forced entry into his apartment was not justified by exigent circumstances; thus the entry and subsequent seizure of evidence in plain view violated Campbell's Fourth Amendment rights. The court held this was a "'police - created exigency.'" Police may not rely on an exigent circumstance, such as the destruction of evidence, when police conduct "'created'" or "'manufactured'" that exigency. The officer did more than "any private citizen might do." See Kentucky v. King, 563 U.S. __, 131 S. Ct. 1849, 1862, 179 L. Ed. 2d 865 (2011). Rather than simply knock on the door and wait for an answer, the officer affirmatively chose to conceal his Identify by covering the peephole and positioning himself to block the occupant's ability to determine who was standing at the door — essentially forcing the occupant of the apartment to make an uninformed decision. "No customary invitation" permits approaching someone's door in this manner. Florida v. Jardines, No. 11-564, 2013 WL 1196577, at *4, *5, 569 U.S. __, __ S. Ct. __, __ L. Ed. 2d __ (March 26, 2013). "Additionally, as Campbell points out, the Kansas Legislature has clearly authorized citizens to use force in defense of their homes. See, e.g., K.S.A. 2012 Supp. 21- 5223(a) (creating a defense to criminal charges when a person justifiably uses appropriate force to protect the person's dwelling). Similarly, our state constitution now provides: "A person has the right to keep and bear arms for the defense of self, family, home, and state." Kan. Const. Bill of Rights § 4. Given this history, we simply cannot accept the State's position that an officer can rely on evidence seized after an officer conducting a voluntary "knock and talk" breaks down the door of a residence after an occupant appears at the door of a home carrying a gun, when the officer' s intrusion into the home has been preceded by the officer (1) positioning himself against the door of the residence so as not to be seen by the occupants; and (2) covering the door's peephole to prevent the occupant from discerning the officer's identity in an affirmative attempt to entice the occupants to open the door." In dissent, Biles stated that covering the peephole was an acceptable ruse, and, "did not violate the Fourth Amendment. The majority cites no case directly on point to support its conclusion. I would affirm the district court and the Court of Appeals. The majority has set a precedent for the court that it will find difficult to live with in future Fourth Amendment cases." ___ Kan. at ___, Biles, J., dissenting.

State v. Beltran, 48 Kan.App.2d 857, 300 P.3d 92 (2013)(No. 106842, filed 05/03/13). Beltran was present when a search warrant was served at a residence. He was a stranger to the property, wasn't expected to be there, and was not named in the warrant. Beltran began walking away from officers and refused to take his hand out of his pocket. Beltran did not comply and continued walking toward the kitchen. The officer grabbed Beltran's hands and then stuck his own hand in Beltran's pocket and found money and drugs. The Court of Appeals affirmed denial of Beltran's suppression motion, but declined to do so based probable cause to search Beltran or inevitable discovery. Devenpeck v. Alford, 543 U.S. 146, 125 S. Ct. 588, 160 L.Ed. 2d 537 (2004), leads to the paradoxical conclusion that although the officer expressly disclaimed any intent to arrest Beltran before the search, an objectively reasonable officer would have had probable cause to arrest Beltran for obstruction, and the search would have been constitutionally acceptable as an incident of that justifiable, if theoretical, arrest. Because search and seizure analysis is driven by objective reasonableness rather than subjective intent, as Devenpeck makes clear, the search comported with the Fourth Amendment to the United States Constitution, so the district court reached the right result.

United States v. Barajas, ___ F.3d ___ (10th Cir. No. 12-3003, filed 03-04-13). Barajas was convicted of several drug crimes and challenged the denial of his motion to suppress all evidence obtained from the wiretap surveillance and GPS pinging of certain cell phones. DEA agents obtained wiretap warrants and pinged cell phones identified during the investigation of a drug-running conspiracy. Barajas's cell phone kept coming up in the investigation, and agents located him in San Diego through GPS pings of his phone. Barajas alleged the pings were illegal because: (1) pinging is a search under the Fourth Amendment; (2) the wiretap affidavits did not provide probable cause for pinging because they failed to request GPS data; and (3) the good-faith exception to the exclusionary rule does not apply. The Circuit affirmed denial of the suppression motion. It assumed without deciding that pinging is a search. It dodged the probable cause issue because any deficiency in probable cause is cured by the good-faith exception, which it found applied based on issuance of warrants allowing wiretaps. Even though the affidavits did not request GPS ping data, the affidavits "establish . . a minimally sufficient nexus between the illegal activity and the place to be searched." Barajas also argued the agents should have known the orders illegally allowed the obtaining of GPS ping data. The Circuit disagreed, noting the law on on electronic surveillance, "is very much unsettled."

United States v. Black, 707 F.3d 531 (4th Cir. No. 11-5084, filed 02/26/13). Charlotte-Mecklenburg police patrolling a high-crime area saw a car at a gas station, and focused on it because during their three-minute observation, the driver did not get out, go in the station or pump any gas. They ran the tag, which came back normal. They followed the car to a parking lot, and saw the driver get out and join five other men standing around. After calling for back up, officers made voluntary contact with the group. One of the group was openly carrying a firearm. One officer testified that he followed the "rule of two," which states that if the police find one firearm, there will "most likely" be another firearm in the immediate area. Another officer referred to this as the "one-plus rule." Officers began collecting IDs and frisking some of the men. Black initially voluntarily offered ID, then "became fidgety," looking right and left as if for an avenue of escape. Black then stood up, said he was going home, and began walking towards nearby apartments. An officer stopped him, saying that he was not free to leave and he should sit down. In response, Black said "I can’t go home?" or "I can’t leave?" and continued walking away. Officers attempted to physically stop him, and while reducing him to custody found a gun. Black was a convicted felon. He moved to suppress the firearm, alleging the stop was not based on reasonable suspicion. The Fourth Circuit agreed. The Circuit found that Black was seized long before he was told not to leave, and at the time of the seizure, the only articulable facts were that one of the men was openly carrying a firearm, which is not a crime in North Carolina. The presence of up to seven police officers and multiple police cruisers constituted a "collective show of authority by the uniformed police," and during the encounter, two officers were performing perimiter duty. The officers had already seized the open carrier's firearm and stored it in a police vehicle, then began frisking the men one-by-one, which would indicate to a reasonable person they were not free to leave. The Court rejected the government's contention that possible felon in a possession situations entitled the police to check. "[W]here a state permits individuals to openly carry firearms, the exercise of this right, without more, cannot justify an investigatory detention. Permitting such a justification would eviscerate Fourth Amendment protections for lawfully armed individuals in those states." The Court cited a 10th Circuit case, United States v. King, 990 F.2d 1552, 1559 (10th Cir. 1993) for this premise. Rejecting the "rule of two," and "one-plus rule," the Court said it would be "abdicat[ing] our judicial role if we took law enforcement-created rules as sufficient to establish reasonable suspicion. Although the opinion did not specify the races of all the individuals involved, the Court seemed to indicate that race played a part in this case. In its conclusion, the Court stated:

 

The facts of this case give us cause to pause and ponder the slow systematic erosion of Fourth Amendment protections for a certain demographic. In the words of Dr. Martin Luther King, Jr., we are reminded that 'we are tied together in a single garment of destiny, caught in an inescapable network of mutuality,' that our individual freedom is inextricably bound to the freedom of others. Thus, we must ensure that the Fourth Amendment rights of all individuals are protected.


Black, 707 F.3d at 542.

Bailey v. United States, 568 U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 11-770, 2/19/13). Police cannot use a search warrant to detain suspects they find outside the target address absent reasonable suspicion. In July 2005, acting on information from a confidential informant, Suffolk County Police Department detectives obtained a search warrant for a basement apartment located in Wyandanch, N.Y. The search warrant specifically identified a basement apartment at the rear of the premises, and did not note that access to the basement door at the rear of the house was possible from both the basement apartment and from the house upstairs. Upon their arrival, detectives saw two individuals, including the petitioner, Chunon "Polo" Bailey, leave the back of the residence. They allowed the men to get into a black Lexus and drive off, but apprehended them about a mile from the home. By the time detectives returned to the house, with Bailey and the other man, Bryant Middleton, now held in the back of a police cruiser, officers searching the apartment had found at least five grams of cocaine and a firearm. Bailey was later convicted on three counts, possession of cocaine with intent to distribute, possession of a firearm by a felon, and possession of a firearm in furtherance of drug trafficking, and sentenced to concurrent terms of 300 and 120 months imprisonment, a consecutive term of 60 months imprisonment, and five years supervised release. On appeal, Bailey claimed that the police obtained evidence during an unlawful detention in violation of his Fourth Amendment rights. The Supreme Court agreed with Bailey. It held this was not a proper detention of people in the immediate vicinity incident to the execution of a search warrant allowed by Michigan v. Summers, 452 U. S. 692 (1981). Bailey left the apartment before the search began; and the police officers waited to detain him until he was almost a mile away. "The categorical authority to detain incident to the execution of a search warrant must be limited to the immediate vicinity of the premises to be searched."

State v. Brittingham, ___ Kan. ___, 294 P.3d 263 (No. 100888, filed 02/15/13). A maintenance person entered Brittingham's public housing apartment to check for damage after a sewer back up. She saw two unresponsive individuals lying in bed, and also observed drugs and drug paraphernalia in plain view on the coffee table. She reported her findings to her supervisor, who tried to roust the residents and later called the police. Police obtained consent to search and found several items used in evidence against Brittingham. Defendant appealed from denial of his motion to suppress. The Court of Appeals, and later the Supreme Court found that the maintenance workers were not government agents (despite their employment by a public housing authority), and this was a private search, followed by plain view and then a consent search. Thus, there was no error in denying the motion to suppress. See also Brittingham, 42 Kan. App. 2d 859, 218 P.3d 441 (2009).

State v. Murphy, ___ Kan. ___, 293 P.3d 703 (No. 100178, filed 02/01/13), affirming 42 Kan. App. 2d 933, 219 P.3d 1223 (2009). An officer stopped defendant for speeding 79 in a 70 in Geary County. The officer wrote the defendant a warning ticket, returned his document, and told him he was free to go. The defendant shook the officer's hand, apologized for speeding and began to walk away. After a Columbo Pivot, the officer said something to the effect of, "By the way, do you have any illegal contraband, drugs, alcohol or weapons in the car?" The defendant denied having those things, and gave consent to search (after consenting to a pat-down). The officer found cocaine and paraphernalia in the vehicle. The defendant claimed his consent was coerced during an illegal detention because the officer did not ask him for permission to ask further questions, and the officer still had his emergency lights on. Rejecting this argument, the majority concluded that a reasonable person would feel free to leave under the circumstances. Applying Thompson, the Court of Appeals majority concluded the following voluntary factors outweighed the detention factors: (1) returning documents; (2) telling the defendant he was free to go, (3) physical disengagement; (4) only one officer present; (5) no display of a weapon or physical touching and (6) the encounter occurred in a public place. The Supreme Court agreed. Rosen, J., dissents, along with Beier and Johnson.

State v. Martinez, ___ Kan. ___, ___ P.3d ___ (No. 99595, filed 02/01/13). Cops had a warrant for a guy named Aguirre, and were looking for him at his apartment complex. They saw Martinez backing out of a parking place and stopped him, one with a gun drawn, because of his known association with Aguirre. Once stopped, they found Aguirre hiding in the back seat. Martinez had drugs on him. He alleged the drugs should be suppressed because there was no reasonable suspicion to stop him. The Supreme Court agreed.

Sentencing

Descamps v. United States, 568 U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 11-9540, filed 06/20/13). Then Ninth Circuit's application of a modified categorical approach to defendant's prior conviction for burglary under California Penal Code section 459, and its determination that said conviction could serve as a predicate offense for the purposes of an enhanced sentence under The Armed Career Criminal Act (ACCA), which increases the sentences of certain federal defendants who have three prior convictions "for a violent felony," including "burglary, arson, or extortion," is reversed, where: 1) the modified categorical approach does not apply to statutes like California Penal Code section 459 for burglary that contain a single, indivisible set of elements; and 2) because generic unlawful entry is not an element, or an alternative element of, section 459, a conviction under that statute is never for generic burglary, and thus defendant's ACCA enhancement was improper.

Alleyne v. United States, 568 U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 11-9335, filed 04/17/13). Defendant's sentence for using or carrying a firearm in relation to a crime of violence that included an increased penalty for "brandishing a weapon" based on the sentencing judge's finding of brandishing, is vacated and remanded, where: 1) because mandatory minimum sentences increase the penalty for a crime, any fact that increases the mandatory minimum is an "element" that must be submitted to the jury; and 2) here, the sentencing range supported by the jury's verdict was five years' imprisonment to life, but the judge, rather than the jury, found brandishing, and this increased the penalty to which defendant was subjected and violated his Sixth Amendment rights.

Supremacy/Preemption

Arizona v. Inter Tribal Council of Arizona, Inc., 568 U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 12–71, filed 06/17/13//13). The National Voter Registration Act of 1993 (NVRA) requires States to "accept and use" a uniform federal form to register voters for federal elections. 42 U. S. C. §1973gg–4(a)(1). That "Federal Form," developed by the federal Election Assistance Commission (EAC), requires only that an applicant aver, under penalty of perjury, that he is a citizen. Arizona law, like Kansas law, however, requires voter-registration officials to "reject" any application for registration, including a Federal Form, that is not accompanied by documentary evidence of citizenship. Respondents, a group of individual Arizona residents and a group of nonprofit organizations, sought to enjoin that Arizona law. Ultimately, the District Court granted Arizona summary judgment on respondents’ claim that the NVRA pre-empts Arizona’s requirement. The Ninth Circuit affirmed in part but reversed as relevant here, holding that the state law’s documentary-proof-of-citizenship requirement is pre-empted by the NVRA. The Supreme Court agreed with the 9th Circuit.

Use of Force

Roosevelt-Hennix v. Prickett, ___ F.3d ___ (10th Cir. No. 12-1307, filed 05/16/13)(U.S. App. LEXIS 9809). A Colorado police officer used a Taser on plaintiff while her hands were cuffed behind her back and she was seated in the back seat of a police car. Plaintiff alleged excessive force. The officer claimed he was entitled to qualified immunity. Obviously, both sides had conflicting versions of the facts, but the district court denied summary judgment based on qualified immunity and the officer appealed. The Circuit affirmed, holding that there was evidence to support the Hennix's version of events. Some reminders worth noting: (1) officers should consider a person's ability to comply with commands prior to utilizing a Taser. This ability to comply may be the result of a medical condition, injury sustained while engaged with officers, or as the result of numerous Taser cycles; (2) in circumstances of mere passive resistance where there is no threat to the officers, a Taser is not an appropriate force option; and (3) In any use of force case, officers should consider (a) the seriousness of the crime at issue, (b) whether the suspect poses a threat to the officer or others, and (c) whether the suspect is actively resisting or attempting to evade arrest by flight.

State v. Ultreras, ___ Kan. ___, ___ P.3d ___ (No. 103527, filed 03/01/13). Ultreras worked in his dad's bar. A group of underage individuals came to the bar and one was asked to leave after being seen drinking alcohol. A fight ensued, and Ultreras started hitting people with a metal baton. Ultreras was ultimately charged with three counts of aggravated battery and moved to dismiss the charges claiming immunity from criminal prosecution under K.S.A. 21-3219. He argued his actions were justified in defense of others or property other than a dwelling. The district court held that Ultreras had the burden to prove by a preponderance of the evidence that his use of force was necessary, and failed to meet his burden. The Supreme Court disagreed and held that the burden of production to negate a claim of immunity rests with the State and the controlling standard of proof is probable cause. It concluded that the district court erred in requiring the defendant to prove by a preponderance of the evidence that the use of force was lawful, but affirmed, finding the district court's error harmless. The verdict and the record supports a determination that the State offered evidence sufficient for a person of "ordinary prudence and caution" to believe that Ultreras's use of force was not justified. It also rejected Ultreras's alternative means rule/super-sufficiency argument, finding the aggravated battery statute gives options within a means and not alternative means. It agreed with Ultreras's argument that he should have been able to ask the victims why they failed to honor their subpoenas, but held the error was harmless. Any damage to the victim's credibility would have been minimal.

Vagueness

City of Lincoln Center v. Farmway CO-OP Inc., ___ Kan. ___ (No. 105962, filed 12/20/2013) affirming in part and reversing in part 47 Kan.App.2d 335, 274 P.3d 680 (2012). Farmway expanded its grain drying facilities and neighbors complained about the noise and dust generated by the facility. Farmway was convicted of noise and nuisance violations and appealed. It filed a motion to dismiss alleging the noise ordinance was unconstitutionally vague because it failed to incorporate a reasonable person standard. The Court of Appeals agreed. A city noise ordinance that makes it illegal to "make, continue, maintain or cause to be made or continue any excessive unnecessary, unreasonable or unusually loud noise which either annoys, disrupts, injures or endangers the comfort, repose, health, peace or safety of others within the City," is too vague to be enforced. The ordinance does not give fair warning to those potentially subject to its reach because there are no objective standards imparted. Just as it was the case in Luna, the Lincoln ordinance contains "[l]oaded phrases and words." 28 Kan. App. 2d at 416. The difference here is that the Lincoln ordinance contains more of these "[l]oaded phrases and words." In substance, the Lincoln ordinance and the ordinance in Luna are really no different. The inclusion of the word "unreasonable" in the Lincoln ordinance does not cure its vagueness. Additionally, its public nuisance ordinances, based on UPOC 9.5 and 9.6, are also too vague to be enforced. The prohibited conduct under the Lincoln nuisance ordinances criminalizes any conduct "which injures or endangers the public health, safety or welfare." This ordinance does not give fair warning to those persons potentially subject to it as to what conduct is criminalized. The district court stated the ordinance is "so vague and indefinite that it fails to warn." Further, the ordinance does not adequately guard against arbitrary and discriminatory enforcement. This appears to be apparent through the evidence, or lack thereof, that Farmway has ever been out of compliance with regulatory standards for dust and industrial noise under State and Federal standards. The Court of Appeals also declared Lincoln Center's nuisance ordinance (UPOD 9.4 & 9.5) vague, but the Supreme Court reversed, holding it was not too vague.




2012 Case Update List

Quick Links to prior year lists.

ADA

Krist v. Kolombos Rest. Inc., ___ F.3d ___ (2nd Cir. No. 11–1263–cv, filed 07/24/12). Plaintiff alleged that defendant Coopertown diner discriminated against her on the basis of her disabilities in violation of Title III of the Americans with Disabilities Act ("ADA" or the "Act"), 42 U.S.C. §§ 12181–12189 and other provisons. Krist, who has been disabled since at least 2003, complained that beginning in late 2008, when she acquired a service dog, defendants discriminated against her by, inter alia, attempting to restrict her access and that of the dog to the restaurant and by verbally harassing her on account of her disability and use of the service dog. The district court ruled for the defendant. The circuit affirmed. The Act defines discrimination to include, to the extent pertinent in this action,

a failure to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such goods [and] services to individuals with disabilities, unless such modifications would fundamentally alter the nature of such goods [and] services.

42 U.S.C. § 12182(b)(2)(A)(ii). Regulations issued under Title III by the Department of Justice shortly after the ADA was enacted, which were effective until March 15, 2011, provided that "[g]enerally, a public accommodation shall modify policies, practices, or procedures to permit the use of a service animal by an individual with a disability." 28 C.F.R. § 36.302(c)(1) (1992); see also 28 C.F.R. § 36.302(c) (2011) (effective Mar. 15, 2011) (elaborating on accommodation requirements for individuals with disabilities aided by service animals). Even if the defendants treated plaintiff differently then before she acquired the dog, the ADA does nor require an atmosphere of civility. There is no evidence that defendants discriminated against her in violation of the ADA.

Brady/Giglio

Smith v. Cain, 556 U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 10–8145, filed 1/10/12). Petitioner Juan Smith was convicted of first-degree murder based on the testimony of a single eyewitness. During state postconviction relief proceedings, Smith obtained police files containing statements by the eyewitness contradicting his testimony. Smith argued that the prosecution’s failure to disclose those statements violated Brady v. Maryland, 373 U. S. 83. Brady held that due process bars a State from withholding evidence that is favorable to the defense and material to the defendant’s guilt or punishment. The state trial court rejected Smith’s Brady claim, and the Louisiana Court of Appeal and Louisiana Supreme Court denied review. The United States Supreme Court reversed Smith's conviction. The State does not dispute that the eyewitness’s statements were favorable to Smith and that those statements were not disclosed to Smith. Under Brady, evidence is material if there is a "reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different." A "reasonable probability" means that the likelihood of a different result is great enough to "undermine[ ] confidence in the outcome of the trial." Kyles v. Whitley, 514 U. S. 419. Evidence impeaching an eyewitness’s testimony may not be material if the State’s other evidence is strong enough to sustain confidence in the verdict. United States v. Agurs, 427 U. S. 97 –113, and n. 21. Here, however, the eyewitness’s testimony was the only evidence linking Smith to the crime, and the eyewitness’s undisclosed statements contradicted his testimony. The eyewitness’s statements were plainly material, and the State’s failure to disclose those statements to the defense thus violated Brady.

Civil & Criminal Liability

Estate of B.I.C. v. Gillen, ___ F.3d ___ (10th Cir. No. No. 11-3219 (filed 12/18/12). (Summary by IMLA). On January 23, 2008, "BIC", a 23-month girl, died at the hands of her father's girlfriend. The estate filed suit against Linda Gillen, a social worker with the Kansas Department of Social and Rehabilitative Services (KSRS) for creating the danger that led to BIC's death and for loss of familial association. The district court dismissed the complaint on the grounds that Gillen had qualified immunity. The Tenth Circuit reversed. It reviewed the tragic history leading to BIC's death: the baby's mother was divorced and was living with her parents; the mother had died, and the girl and her siblings had been taken in by their father and his girlfriend. The grandparents and other relatives soon began to notice telltale scars and marks on the baby's body and school official saw abrasions and bruises on her older brother, CSC. They alerted KSRS and Ms. Gillen was assigned the case. She interviewed the father and girlfriend. The latter admitted to slapping CSC, but Gillen never reported the event to police. The grandparents subsequently attempted to reach Gillen for over a week with additional troubling details; when she finally accepted their call, she stated that allegations of child abuse were "police matters" that she would not get involved in. Late in 2007, the grandparents went to Gillen's office with a CD documenting BIC's bruises and scars. Ms. Gillen refused to accept the CD. The grandparents felt that Gillen had particular animosity towards their family. Less than one month later, police responded to a 911 call and found BIC with the father's girlfriend, unresponsive. She died a few days thereafter of brain injuries consistent with Shaken Baby Syndrome. Investigators within KSRS evaluated Ms. Gillen's cases and determined that she had treated BIC and CSC in a far less responsive manner than any other cases. The district court had found that this pattern of behavior was "not decidedly affirmative" and did not shock the conscience. The Tenth Circuit viewed the facts otherwise. The state is not generally implicated where a private citizen injures or kills another, but the answer is different where the state has assumed a special relationship with the decedent and where it creates the danger that causes the harm. The plaintiff must show a combination of affirmative behavior by the state and private violence causing the injury. Here, the private violence was manifest; the issue was whether Gillen's conduct was "affirmative." The Circuit Court found that it was. Gillen's persistent refusal to take action-including rejecting photographic evidence of abuse-- went far beyond mere incompetence or negligence. This behavior could undoubtedly shock the conscience. The Circuit Court reversed the lower court's grant of qualified immunity and remanded for further proceedings.

Marquez v. City of Phoenix, ___ F.3d ___ (9th Cir. No. 10 17156, 2012 U.S. App. LEXIS 19048 (September 11, 2012). In a case almost too bizarre for words, the 9th Circuit affirmed an order granted officers summary judgment on a Taser excessive force claim that resulted in an in-custody death. The highly condensed story is that police used a Taser several times (twice in dart mode, several times in drive stun mode) against Ronald Taylor, a large, noncompliant man, who was attempting to perform an exorcism on his three year old granddaughter. The coroner ruled his death was caused by "excited delirium," although marijuana was the only drug in Ronald's system. The coroner also listed "hypertensive/ atherosclerotic cardiovascular disease" as a contributing condition. The Ninth Circuit pointed out that the force used does not have to be the minimum necessary - just a reasonable amount, stating "[p]olice officers . . . are not required to use the least intrusive degree of force possible." Forrester v. City of San Diego, 25 F.3d 804, 807-08 (9th Cir. 1994); see also Gregory v. County of Maui, 523 F.3d 1103, 1107 (9th Cir. 2008). Weighing the Graham v. Conner factors, the Ninth Circuit held that although officers used significant force in this case, the force used was reasonable and justified by the significant government interest at stake.

Rosa v. Taser International, Inc., ___ F.3d ___ (9th Cir. No. 09-17792, filed 7/10/12). Taser Had No Duty to Warn of Metabolic Acidosis. The Ninth Circuit upheld dismissal of a failure to warn lawsuit against the company, concluding that Taser International had no reason to advise police agencies in 2004 that the stun guns could cause the condition. In August 2004, police in Del Rey Oaks, Calif. responded to a call regarding an EDP walking down a street and yelling. The EDP, Michael Rosa, was under the influence of meth and refused to comply with verbal orders. The officers, thinking that Rosa was either "high or crazy," subdued Rosa by deploying a Taser M26 multiple times, and handcuffing Rosa. It took six officers to subdue Rosa, who continued to resist after an officer attempted to handcuff him. After officers had Rosa in restraints, they rolled him onto his side. At that point, Rosa slumped. His lips had turned blue, and his breathing was erratic. He quickly stopped breathing entirely. Despite resuscitation efforts, Rosa died. Rosa’s death was subsequently linked to metabolic acidosis, a condition under which lactic acid accumulates more quickly than the body can dispose of it, causing the pH in the body to decrease. The condition makes sudden cardiac arrest more likely. Rosa’s parents and daughter, (the plaintiffs) sued Taser International, asserting that Rosa died because the company provided an inadequate warning of the risk that shocks can cause fatal levels of metabolic acidosis. They pursued both strict liability and negligence theories under California law based upon this failure to warn. Taser International maintains there is no evidence that Tasers cause acidosis, but began warning about it anyway in 2009. After discovery, the district court granted summary judgment in favor of Taser, concluding that the plaintiffs had not established a triable issue of fact that the risk of metabolic acidosis was known or knowable when the M26 at issue was distributed in December 2003, (or even when Rosa died the following August). The Ninth Circuit Court of Appeals affirmed summary judgment, finding that the district court had reached the right conclusion.

Marsh v. County of San Diego, ___ F.3d ___ (9th Cir. No. 11-55395, filed 05/29/12/). Not only are autopsy photos private, but the deceased's family has a constitutional right to bar the release of such photos even when taken as part of a criminal investigation. Or so says the Ninth Circuit Court of Appeals. The court was tasked with deciding whether a former San Diego prosecutor violated Brenda Marsh's constitutional right to privacy when he released autopsy photos of her 2-year-old son. He did. Marsh's story begins in 1983, when her son sustained a head injury while being cared for by her then-boyfriend. He was convicted of murder despite claiming the toddler had fallen off the couch. In 2006, this conviction was set aside in light of new medical evidence. Upset, the prosecuting attorney wrote an article and sent it, along with copies of the boy's autopsy photos, to the media. Brenda Marsh sued, arguing that the dissemination of these photos violated her 14th Amendment right to privacy. Citing the "long-standing tradition of respecting family members' privacy in death," the court agreed. Family members have a constitutional right to protect the "memory and images of a deceased child against unwarranted public exploitation by the government." Though Marsh now affirmatively has a right to keep these autopsy photos private, she still can't sue the city or former prosecutor. Government officials are immune from suits when the underlying constitutional right was not clearly established at the time of the alleged violation. Because this was the first time the Ninth Circuit considered such questions, whether Marsh had a constitutional right was previously unknown. However, the government has now been officially put on notice. Families can now sue should prosecutors and investigators fail to keep autopsy photos private.

Filarsky v. Delia, 565 U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 10-1018, filed 4/17/12). The United States Supreme Court held that a private attorney hired by the government to conduct an investigation was entitled to seek qualified immunity in defense of a Section 1983 claim. Delia was a firefighter who missed work for an extended period claiming to be ill. His city employer became suspicious when Delia was spotted buying fiberglass insulation and other building supplies. The city later initiated an internal affairs investigation and hired a private attorney, Filarsky, to conduct it. The attorney and city officials confronted Delia at his home. Delia admitted buying the supplies but claimed he didn't use them. The attorney and city officials demanded that Delia produce the unused materials and Delia did so. Delia filed a Section 1983 claim against the city and various officials and the private attorney. The district court granted summary judgment to the individual defendants based on qualified immunity. The Ninth Circuit affirmed as to all individual defendants but Filarsky, concluding that as a private person he was not entitled to qualified immunity. The United States Supreme Court reversed. In a 9-0 decision, the Court held that a private individual temporarily retained by the government to carry out its work - notably the basic function of an investigator - is entitled to seek qualified immunity from suit under Section 1983.

Rehberg v. Paulk, 565 U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 10-788, filed 04/02/12). A complaining witness in a grand jury proceeding is entitled to the same immunity in an action under 42 U. S. C. §1983 as a witness who testifies at trial. Rehburg was indicted three times (although each was later dismissed) based in part on Paulk's testimony to the grand jury. Paulk was an investigatory for the district attorney. Rehburg then sued Paulk alleging a violation of 42 U. S. C. §1983. Rehburg contended that Paulk conspired to present and did present false testimony to the grand jury. Paulk moved to dismiss, arguing, among other things, that he was entitled to absolute immunity for his grand jury testimony. The United States District Court for the Middle District of Georgia denied respondent’s motion to dismiss, but the Court of Appeals reversed, holding, in accordance with Circuit precedent, that respondent was absolutely immune from a §1983 claim based on his grand jury testimony. The United States Supreme Court agreed with the Circuit, holding the factors that justify absolute immunity for trial witnesses apply with equal force to grand jury witnesses, even when they are law enforcement witnesses.

Houston v. City of New Orleans, ___ F.3d ___ (5th Cir. No. 11-30198, filed 03/15/12). The Second Amendment does not extend to a right to bear a specific arm. One month before his July 2008 arrest, New Orleans police seized Errol Houston's Glock 22 .40-caliber pistol. Approximately a month later, the district attorney entered nolle prosequi (abandonment of prosecution) on the charges against Houston, but the city didn't return the pistol. Almost a year after his arrest, the city still had not returned Houston's gun, despite multiple requests. Houston sued, claiming violations of the right to keep and bear arms and of due process, and seeking the return of his firearm. Houston's claims were dismissed under Rule 12(c). The district court ruled that retention of the firearm was "reasonable ... because firearms are needed as evidence in instituting criminal prosecution" and that Houston "does not have a Second Amendment right to the particular firearm seized." The Fifth Circuit Court of Appeals agreed. "The right protected by the Second Amendment is not a property-like right to a specific firearm, but rather a right to keep and bear arms for self-defense." Cf., Walters v. Wolf, 660 F.3d 307 (8th Cir. 2011)(where no statutory procedure provided for return of firearm in the criminal action, due process action is a proper remedy even though a state tort action is available).

Messerschmidt v. Millender, 565 U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 10-704, filed 2/22/12). Police were doing a domestic stand-by while Kelly moved out of her boyfriend's apartment, but were called away on an emergency. The boyfriend, Bowen, showed up and assaulted and battered Kelly, including shooting at her with a sawed-off shotgun. Police obtained a warrant for Bowen's mother's house that authorized a search for all guns and gang-related material. Bowen's mom sued the officers claiming the search was illegal. The Ninth Circuit held the warrant was overly broad and denied the officers summary judgment. The Supreme Court reversed, holding the officers were entitled to qualified immunity. Given Bowen’s possession of one illegal gun, his gang membership, his willingness to use the gun to kill someone, and his concern about the police, a reasonable officer could conclude that there would be additional illegal guns among others that Bowen owned. Also, a reasonable officer could believe that seizure of the firearms was necessary to prevent further assaults on Kelly. Further, presentment of the warrant and affidavit to the officer's supervisors and an ADA, all of which approved, showed the officers relied on issuance of the warrant in good faith.

State v. O'Rear, ___ Kan. ___, ___ P.3d ___ (No. 99487, filed 2/17/12). O'Rear was a security guard at a bank. He saw Jackson walk into the bank wearing a stocking cap and sunglasses, and thought Jackson had a gun (which was actually a cane). O'Rear shot him in center body mass. The State charged O'Rear with reckless aggravated battery in violation of K.S.A. 21-3414(a)(2)(A) and the jury convicted him. O'Rear appealed, alleging there was insufficient evidence of recklessness. The State argued that O'Rear's reckless act was not in pulling the trigger, but instead it was in deciding to shoot with too little information. The Supreme Court reversed the conviction. "The only evidence presented at trial was that O'Rear intended to shoot Jackson in center mass; in other words, he intended to cause great bodily harm to Jackson. The reasons he intended to do so may have been born of misperception, but the intention remained. The mental state of recklessness is incompatible with a mental state where a person acts with knowledge, willfulness, or purposefulness, meaning a person cannot act both intentionally and recklessly with respect to the same act. State v. Shannon, 258 Kan. 425, 429, 905 P.2d 649 (1995). Rather, an act is either intended or not intended; it cannot simultaneously be both. Consequently, guilt of one necessarily negates guilt of the other."

Garcia v. Anderson, 46 Kan.App.2d 1094, 268 P.3d 1248 (2012), rev. denied ___ Kan. ___ (02/07/13). Garden City Police officers stopped Garcia's vehicle for a defective brake light. They called in the wrong driver's license number, resulting in Garcia's brief arrest for warrants and INS holds. Once officers realized their error, they released Garcia without an apology or explanation. Garcia filed a KHRC complaint alleging racial profiling and the KHRC found probable cause. Garcia sued pursuant to K.S.A. 22-4611. The district court dismissed her complaint for failure to comply with K.S.A. 2010 Supp. 12-105b(d). The Court of Appeals affirmed, stating the requirement that claimants give notice of their claim pursuant to 12-105b(d) is a reasonable restriction that applies equally to all persons wishing to sue the government.

Constitutional Law

State v. Edwards, ___ Kan.App.2d ___, ___ P.3d ____ (No. 106435, filed 11/02/12). Charles L. Edwards, a Wichita area high school music instructor, engaged in sexual intercourse with one of his 18-year-old high school students. He appealed his unlawful sexual relations conviction, contending the statute defining his conduct as a crime is unconstitutional because it infringes upon his fundamental right, while in the privacy of his home, to engage in sexual conduct with a consenting adult. The Court held the right of privacy does not encompass the right of a high school teacher to have sex with students enrolled in the same school system. The legislature had a rational basis for recognizing the disparity of power inherent in the teacher/student relationship.

Massachusetts v. Dep't of Health and Human Services, ___ F.3d ___ (1st Cir. No. 10-2204, filed 05/31/12). Section 3 of the Defense of Marriage Act (DOMA) is ruled unconstitutional as a violation of equal protection, where: 1) intermediate scrutiny was not appropriate, but in areas where state regulation has traditionally governed, the court may require that the federal government interest in intervention be shown with special clarity; 2) the statute's consequences did not violate the Tenth Amendment or Spending Clause, but given that DOMA intrudes broadly into an area of traditional state regulation, a closer examination of the justifications that would prevent DOMA from violating equal protection is uniquely reinforced by federalism concerns; and 3) the rationales offered in support of section 3 of DOMA did not provide adequate support for it.

DL Suspension

Byrd v. Kansas Department of Revenue, ___ Kan. ___, ___ P.3d ___ (No. 101189, filed 10/26/12), affirming 43 Kan.App.2d 145, 221 P.3d 1168 (No. 101,189, filed 01/15/10). Byrd provided a blood sample that tested at 0.28. Upon receipt of the results, Atchison County Deputy Clark executed the DC-27 form and gave it to an administrative assistant, Hale, who mailed it to Byrd. Byrd argued to the district court that Clark had to mail the notice himself to comply with K.S.A. 8-1002(c). The district court agreed. The Court of Appeals reversed, finding substantial compliance with the service statue based on the 1993 amendment to K.S.A. 8-1001(v) ("this act is remedial law and shall be liberally construed to promote public health, safety and welfare.") The Court of Appeals held the 1993 legislative amendment meant that Anderson v. Kansas Dept. of Revenue, 18 Kan.App.2d 347, 355, 853 P.3d 69, rev. denied 253 Kan. 856 (1993)(strict compliance with personal service statute K.S.A. 8-1002(c) required), was no longer good law. The Supreme Court interpreted the term "mail" to include ensuring the item was properly addressed, stamped and mailed through an office mail system, and therefore it was not necessary to liberally construe the statute nor consider substantial complaince.

Olson v. Kansas Dept. of Revenue, 286 P.3d 1160, 2012 WL 5205620 (unpublished, 10/19/12). Olson pulled into a driveway adjacent to a checklane. This made the officer working the checklane suspicious. The officer approached and spoke with Olson. He could smell alcohol but was not sure it was coming from Olson or a passenger. Olson's license indicated he was under 21 years old. Olson told the officer he had "too much" to drink that night. On the one leg stand test he exhibited 1 clue and no clues on the walk and turn test. The PBT indicated .053. Olson was under arrest for MIP (alcohol was found in the vehicle) and MIC. The officer read the implied consent and Olson's BAC was 0.048. The officer gave the Olson a notice of suspension form for having a BAC over 0.02. Olson's DL was suspended for the test failure and he argued that a minor cannot be arrested for driving with a BAC less than 0.08. Olson claimed the officer did not have reasonable grounds to subject him to the evidentiary breath test. The appellate court noted K.S.A. 8-1001 says an officer can request a test under the implied consent law if it is shown the officer had reasonable grounds to believe that he was operating under the influence. The implied consent law states "or was under the age of 21 years while having alcohol or other drugs in such person's system." The court looked to Olson driving into an adjacent lot, bloodshot eyes, smell of alcohol, admitted to drinking too much. The officer also noted Olson was under age. The PBT indicated 0.053 which is a violation of K.S.A. 41-727(a). The court also noted Young v. KDOR, 2012 WL 1450445 which had similar facts. The evidence established Olson was operating a vehicle while under the influence of alcohol.

Swank v. Kansas Dept. of Revenue, ___ Kan. ___, ___ P.3d ___ (No. 102223, filed 07/27/12). After a dust-up between Swank, Jana Waddell, and Waddell's ex-husband. Jana said Swank was extremely drunk, chased her home and drove recklessly back and forth in front of Jana's house. A Yates Center officer responded to Waddell's ex-husband's house and found Swank's car in the driveway. Swank was not in the car when the officer arrived. Swank admitted that she had been drinking and admitted that she had followed Waddell. The officer did not ask Swank if she had consumed any alcohol after she pulled into the driveway, i.e., after she had stopped driving, but he arrested her for DUI and she blew a 0.203. The district court set the suspension aside after Swank testified she drank some hot damn after pulling into the driveway. The Supreme Court reversed the Court of Appeals unpublished decision overturning the district court's ruling. It held that post-driving alcohol consumption is a fact potentially relevant to the determination of the enumerated issue of whether an officer had "reasonable grounds to believe the person was operating a vehicle while under the influence of alcohol." K.S.A. 8-1020(h)(2)(A); cf. K.S.A. 8-1020(l)(2) (addressing evidence that can be admitted at administrative hearing on license suspension, including testimony of licensee). The Supreme Court went on to say, "an officer cannot insulate his or her assessment of the existence of reasonable grounds from review or criticism by a district or appellate court by maintaining a posture of willful ignorance on a suspect's post-driving alcohol consumption. Reasonableness is key. If the situation is such that a reasonable law enforcement officer would investigate, it behooves an actual officer to do so. This is particularly true when an officer's personal observations of the scene or the suspect suggest the possibility of post-driving alcohol consumption. Such consumption is a factor to be considered and evaluated, not ignored."

Bolton v. Kansas Department of Revenue, ___ Kan.App.2d ___, ___ P.3d ____ (No. 105188, filed 03/23/12). An operator of the Intoxilyzer 8000 machine need not ask a driver to remove his or her dentures for the operator to substantially comply with the testing procedures established by the Kansas Department of Health and Environment. Bolton was stopped and blew a 0.226. He contended that the officer did not substantially comply with the protocol. The Court of Appeals disagreed.

Domestics

Storey v. Taylor, ___ F.3d ___ (10th Cir. No. 11-2180, filed 10/01/12). Los Lunas, New Mexico police received an anonymous call reporting a loud argument at Storey's residence. When officers arrived, they did not hear anything and saw no signs of violence. Storey answered the door and told the officers that he and his wife had argued, but that she was not home at that moment. Officers explained why they were present, and that they needed to make sure everyone was safe. Storey refused to tell officers what the argument was about. Officers ordered Storey to step outside of the house. He refused and was arrested. Storey's wife arrived during the arrest, and did not have any signs of injury. Storey filed suit claiming, among other things, that the officers violated his Fourth Amendment right against unreasonable seizures because they arrested him in his home without a warrant or exigent circumstances. The district court granted the officers summary judgment. The Circuit reversed. The Circuit found that absent exigent circumstances, officers had no basis to order Storey out of his house. A report of a domestic argument-standing alone-does not demonstrate exigent circumstances per se. United States v. Davis, 290 F.3d 1239, 1244 (10th Cir. 2002). Thus, officers responding to a report of a domestic dispute must point to something beyond the mere fact of an argument to demonstrate an "objectively reasonable basis to believe there is an immediate need to protect the lives or safety of themselves or others." "In sum, a report of a loud argument-without more-that has ceased by the time an officer arrives, although relevant to the exigent circumstances inquiry, does not alone create exigent circumstances to justify a warrantless arrest." The Circuit also held the law against illegal warrantless home arrests had been clearly established (citing a 2010 case - the arrest in this case took place in 2007), so it denied qualified immunity.

State v. Skillern, ___ Kan.App.2d ___, ___ P.3d ____ (No. 107600, filed 11/09/12). Skillern slapped her boyfriend, and pled to a 1st offense domestic battery. She asked for probation, but the judge sentenced her to 48 consecutive hours first. Skillern appealed and argued that there is no 48 hour consecutive minimum. The Court of Appeals agreed, holding that K.S.A. 2011 Supp. 21-5414(b)(1) only requires that a minimum 48 hour sentence be imposed, not served.

Double Jeopardy

Blueford v. Arkansas, 565 U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 10-1320, filed 05/24/12). The State of Arkansas brought charges against Alex Blueford for the murder of 20-month-old Matthew McFadden, Jr. Initially, the forewoman told the court that the jury unanimously agreed that Blueford had not committed capital murder or first-degree murder, but that it was unable to arrive at a verdict on the lesser-included offense of manslaughter, and had not reached the lesser-included offense of negligent homicide. Ultimately, the jury announced that it was deadlocked, and the court declared a mistrial. Blueford moved to prevent retrial of the murder charges, arguing that the jury had acquitted him on those counts. Arkansas contended that there was no acquittal because the hung jury was unable to reach a verdict. The Supreme Court of Arkansas denied Blueford’s motion, and he appealed to the U.S. Supreme Court. Blueford argued that allowing a retrial on all the charges would violate the Constitution’s Double Jeopardy Clause and allow the state to overreach its authority. The Court disagreed and held that Blueford had not been acquitted, so double jeopardy does not prevent a retrial.

Drivers Privacy Protection Act

Senne v. Village of Palatine, 695 F.3d 597 (7th Cir. 2012), cert. denied 133 S.Ct. 2850 (06/24/13). Putting a vehicle owner's personal information on a parking ticket left on an windshield is an unauthorized disclosure and violates the Drivers Privacy Protection Act. On November 27, 2013 on remand, the district court granted the Village of Palatine's motion for summary judgment. Despite personal information being listed on the ticket being a disclosure under the DPPA, it was in fact a permissible use of information for the purposes of identification and verification of the particular individual to whom the ticket was written. The court agreed that the personal information is often used to void erroneously issued tickets and to help identify drivers lacking other identification. The district court was careful to point out that "not all of the personal information disclosed on parking tickets in Palatine may be absolutely necessary..." Senne has filed an appeal from the ruling granting Palatine summary judgment, so the 7th Circuit will be seeing the case again.

DUI

State v. Ahrens, ___ Kan. ___, ___ P.3d ___ (No. 103362, filed 12/21/12). The terms"operating" or "attempting to operate" a vehicle do not create alternative means of establishing the crime of driving under the influence (DUI) under K.S.A. 2008 Supp. 8-1567(a)(3). A deputy stopped Ahrens for having a taillight out, and noticed the usual indicators of intoxication. Ahrens refused a breath test and was convicted of DUI. He alleged he was denied a unanimous jury verdict because the statute contains alternative means. Applying State v. Brown, 295 Kan. 181, 284 P.3d 977 (2012), the Court rejected his argument, finding the elements of the crime are (1) driving and (2) being under the influence. It found the legislature employed the phrase "operate or attempt to operate" in order to encompass a broader set of factual circumstances that could establish the driving element. See also State v. Perkins, ___ Kan. ___, ___ P.3d ___ (No. 103735, filed 12/21/12)(same); State v. Suter, .___ Kan. ___, ___ P.3d ___ (No. 103164, filed 12/21/12)(same).

Schrader v. Kansas Dept. of Revenue, ___ Kan. ___, ___ P.3d ___ (No. 103176 filed 12/13/12), affirming 45 Kan. App. 2d 216, 247 P.3d 681 (2011)(No. 103176, filed 01/24/11). An Oberlin officer stopped Schrader late at night for traffic violations. Schrader finally stopped in his driveway, and initially ignored the officer's requests to remain. After being physically stopped, he smelled of alcohol and showed poor balance and coordination. Schrader refused field sobriety tests and a PBT. He was arrested for driving while suspended and transported to the Sheriff's office, where he refused a breath test. Although the officer had reasonable grounds to believe that Schrader was driving while under the influence, the only reason the officer gave for the arrest was driving while suspended. The court held that K.S.A. 8-1001(b)(1) requires an arrest for an alcohol-related driving offense rather than simply requiring an arrest for any offense involving operation of a motor vehicle, and held that Schrader's non-existent driving privileges should not have been suspended for refusing a breath test. The Kansas Supreme court agreed with the Court of Appeals and overruled State v. Counseller, 22 Kan. App. 2d 155, 912 P.2d 757, rev. denied 260 Kan. 997 (1996).

Sloop v. Kansas Dept. of Revenue, ___ Kan. ___, ___ P.3d ___ (No. 103334, filed 12/13/12). TPD officer Bergerhofer stopped Sloop around midnight after he made an unusual left turn described as "started turning, stopped, and started turning again." Bergerhofer followed Sloop due to the unusual turn and because he was "sitting unusually close to his steering wheel." He also had a tag light out. Sloop had the usual indicators of intoxication and refused a breath test. The Supreme Court reversed Sloop's suspension because the evidence was insufficient to establish probable cause for the defendant's arrest. In doing so, the Court disapproved language from Bruch v. Kansas Dept. of Revenue and other cases saying the proof needed to establish probable cause is sufficient "if the information leads a reasonable officer to believe that guilt is more than a possibility." Bruch v. Kansas Dept. of Revenue, 282 Kan. 764, 775-76, 148 P.3d 538 (2006) (quoting Sullivan v. Kansas Dept. of Revenue, 15 Kan. App. 2d 705, 707, 815 P.2d 566 [1991]). The Court said the phrase crept into its caselaw apparently without explanation, and it has received undue emphasis in the probable cause calculus, sometimes to the exclusion of other considerations. Probable cause must be determined by examination of totality of the circumstances.

State v. Benson, ___ Kan. ___, 287 P.3d ___ (No. 97905, filed 11/09/12). Benson argued that admission of a certificate of calibration for the Intoxilyzer 5000 machine used to determine the level of alcohol in Benson's breath without calling the person that calibrated the instrument violated his rights under Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). The Court held that certificate of calibration is not testimonial in nature, therefore no violation occurred.

State v. Reese, ___ Kan.App.2d ___, ___ P.3d ____ (No. 106,703 filed 08/09/12), reversed, see Reese case above. Reese was arrested for his 5th lifetime DUI on July 3, 2009. He argued the 10-year lookback, effective at the time of sentencing in 2011, should wipe out his priors from 1983, 1985, 1988, and 1999. Judge Bornholdt disagreed and sentenced him as a 5th offender. The Court of Appeals affirmed. K.S.A. 2011 Supp. 8-1567(j)(3), which shortens the "look-back" period for determining the number of previous DUI convictions taken into account from a lifetime to only those convictions occurring on or after July 1, 2001, cannot be applied retroactively. It applies only to crimes committed on or after the effective date of the statutory amendment.

State v. Rickerson, ___ Kan.App.2d ___, 276 P.3d 240 (No. 105863, filed 05/18/12). A DUI defendant's conviction is reversed based on illegal detention for six hours pursuant to an administrative policy adopted by the Johnson County District Court in 1990 and readopted in 2006 that required a mandatory 6-hour detention of all persons arrested for driving under the influence (DUI) before they were allowed to post a scheduled bond. There is no dispute that this policy was unlawful because it did not require an individualized determination as to whether the driver is intoxicated and a danger to himself or herself or others. State v. Cuchy, 270 Kan. 763, 19 P.3d 152 (2001). The Court of Appeals finds, as did the Cuchy court, that dismissal is the appropriate sanction for institutional noncompliance and systematic disregard of the law.

State v. May, ___ Kan. ___, ___ P.3d ___ (No. 102248, filed 02/01/12). A trooper arrested May for driving under the influence. May agreed to a breath test, but blew an insufficient sample. The trooper deemed it a refusal. May immediately requested an opportunity to retake the breath test. The trooper denied the request. Judge Bennett found the request was a valid rescission and suppressed any evidence of a test refusal or of the test result on the insufficient sample. The Court of Appeals affirmed, as did the Supreme Court on petition for review. Based on the five factors in Standish v. Department of Revenue, 235 Kan. 900, 902-03, 683 P.2d 1276 (1984), this was a valid rescission of a refusal.

City of Wichita v. Molitor, 46 Kan. App. 2d 958, 959, 268 P.3d 498 (2012), reversed, ___ Kan. ___ (No. 104940, filed 01/30/15). Officers saw Molitor come out of a bar about 2300 hours. They stopped him for failing to signal a turn. While stopping, Molitor ran over and parked on a curb. Officers noticed usual indicators of intoxication. Molitor exhibited 6/6 clues on the Horizontal Gaze Nystagmus (HGN) test. He showed 1/4 on the one leg stand (OLS). The preliminary breath test (PBT) was 0.09 and the breath test was 0.091. Molitor argues that it was error for the district court to consider evidence of HGN test in determining whether a police officer had reasonable suspicion to request that he submit to a PBT. The Court held it was appropriate for the district court to consider the results of the HGN test administered to Molitor as part of its reasonable suspicion analysis under K.S.A 2010 Supp. 8-1012(b). Because reasonable suspicion is a less demanding standard than probable cause and requires a showing considerably less than a preponderance of the evidence, we find that HGN test results may, under appropriate circumstances, be considered as part of the totality of the circumstances in determining whether a law enforcement officer has reasonable suspicion to request a PBT. It also held that even without the HGN evidence, there was reasonable suspicion for the police officer to believe that Molitor had been operating a vehicle under the influence of alcohol and affirmed.

DWS

State v. Suter, ___ Kan. ___, ___ P.3d ___ (No. 103164, filed 12/21/12). The legislature's use of the disjunctive "or" in the phrase "canceled, suspended or revoked" in K.S.A. 2008 Supp. 8-262 was not intended to create three means of committing the crime of driving while suspended.

The actus reus of the crime of driving while suspended, as prohibited by K.S.A. 2008 Supp. 8-262, is driving without a privilege to do so. The phrase "canceled, suspended or revoked" simply describes the different factual circumstances that can prove that material element of the crime.

Employment & Discipline

Jordan v. City of New London, ___ F.3d ___ (2nd Cir. No. ____ filed 8/23/12). A man whose bid to become a police officer was rejected after he cored too high on an intelligence test has lost an appeal in his federal lawsuit against the city. The 2nd U.S. Circuit Court of Appeals in New York upheld a lower court's decision that the city did not discriminate against Robert Jordan because the same standards were applied to everyone who took the test. Jordan, a 49-year-old college graduate, took the exam in 1996 and scored 33 points, the equivalent of an IQ of 125. But New London police interviewed only candidates who scored 20 to 27, on the theory that those who scored too high could get bored with police work and leave soon after undergoing costly training. The average score nationally for police officers is 21 to 22, the equivalent of an IQ of 104, or just a little above average. Jordan alleged his rejection from the police force was discrimination. He sued the city, saying his civil rights were violated because he was denied equal protection under the law. But the U.S. District Court found that New London had "shown a rational basis for the policy." In a ruling dated Aug. 23, the 2nd Circuit agreed. The court said the policy might be unwise but was a rational way to reduce job turnover. Jordan has worked as a prison guard since he took the test.

MOCHA Society Inc et al v. City of Buffalo, ___ F.3d ___ (2nd Cir. Nos. 11-2184 and 10-2168, filed 07/30/12). The city of Buffalo, New York, did not discriminate against African-Americans with the test it used to promote firefighters, a federal appeals court has ruled. Although black firefighters generally had a lower pass rate (43%) than their white counterparts (76%), Buffalo demonstrated that the test assessed the necessary skills for the job of fire lieutenant.

Pearce v. University of Louisville ex rel. its Bd. of Trustees, 2011 WL 5599540 (Ky. App. 2011). The Kentucky Police Officer's Bill of Rights does not apply to department-initiated disciplinary proceedings. The case involved Todd Pearce, who had been terminated from his job as a police officer for the University of Louisville. The charges against Pearce included allegations that he had failed to timely respond to a fire alarm and then failed to write a report about the incident, and that he had improperly engaged in a wrong-way traffic pursuit. The court determined the language used in the bill suggests "that the purpose of the statute is to provide procedural due process to police officers who are accused of wrongdoing by citizens."

Equal Protection

Downtown Bar and Grill, LLC v. State, ___ Kan. ___, ___ P.3d ___ (No. 104761, filed 04/06/12). Downtown Bar and Grill cannot meet its burden to show likely success on the merits, therefore the court dissolves the injunction preventing enforcement of 2010 House Bill 2221, otherwise known as the Kansas Indoor Clean Air Act, L. 2010, ch. 8, secs. 2-8; K.S.A. 2010 Supp. 21-4009 et seq. Effective July 1, 2010, which prohibits smoking in public places and places of employment.

Firearms

Moore v. Madigan, ___ F.3d ___ (7th Cir. No. 12-1269, 12-1788, filed 12/11/12). The 7th Circuit strikes a blow for self defense and strikes down the last remaining ban on concealed carry by the state of Illinois. The law allowed ownership and the right to bear on a person's own property, but not out in public. Relying largely on Heller and McDonald, the court struck down the prohibition. "A right to bear arms thus implies a right to carry a loaded gun outside the home." After examining the history of the right to bear arms for self-defense, the court stated:

 

Twenty-first century Illinois has no hostile Indians. But a Chicagoan is a good deal more likely to be attacked on a sidewalk in a rough neighborhood than in his apartment on the 35th floor of the Park Tower. A woman who is being stalked or has obtained a protective order against a violent ex-husband is more vulnerable to being attacked while walking to or from her home than when inside. She has a stronger self-defense claim to be allowed to carry a gun in public than the resident of a fancy apartment building (complete with doorman) has a claim to sleep with a loaded gun under her mattress. But Illinois wants to deny the former claim, while compelled by McDonald to honor the latter. That creates an arbitrary difference. To confine the right to be armed to the home is to divorce the Second Amendment from the right of self-defense described in Heller and McDonald. It is not a property right—a right to kill a houseguest who in a fit of aesthetic fury tries to slash your copy of Norman Rockwell’s painting Santa with Elves. That is not self-defense, and this case like Heller and McDonald is just about self-defense.


Moore, slip opinion at 8. However, in deference to the legislature, the Court stayed its mandate for 180 days to allow the Illinois legislature to craft a new gun law that will impose reasonable limitations, consistent with the public safety.

National Rifle Ass'n. v. Bureau of Alcohol, Tobacco and Firearms, ___ F.3d ___ (5th Cir. No. 11-10959, filed 10/25/12). The Fifth Circuit shot down an NRA lawsuit that sought to allow gun sales to adults 18 to 20 years old. The NRA challenged 18 U.S.C. §§ 922(b)(1) and (c)(1), which prohibit gun sales to anyone under 21. Lawyers for the NRA argued the ban was unconstitutional under the Second Amendment's right to bear arms and the Fifth Amendment's right to equal protection. The Court disagreed. Such a ban "appears consistent with a longstanding tradition of age- and safety-based restrictions on the ability to access arms," the opinion states. The court also noted that 18- to 20-year-olds could still lawfully use handguns for self-defense and for other purposes like recreation. The Court reasoned that the under-21 gun sale ban presents a reasonable means to achieve an important government interest -- addressing the "particular problem" of "young persons under 21, who are immature and prone to violence, easily accessing handguns," the court held.

Regents of the University of Colorado v. Students for Concealed Carry on Campus, LLC., 2012 CO 17, No. 10SC344, 3/5/12). The Colorado Supreme Court ruled that the University of Colorado cannot ban concealed-carry permit holders from bringing guns onto campus. Students for Concealed Carry on Campus, a gun-rights group, filed a lawsuit against the university in 2008, claiming its concealed weapon policy violated state gun laws. James Manley, the attorney representing the group, argued that state law prohibits local governments from limiting state concealed-weapon rights. Attorneys with the university argued that the law applies to cities and counties, not its campuses. The Supreme Court held that the CCA’s comprehensive statewide purpose, broad language, and narrow exclusions show that the General Assembly intended to divest the Board of Regents of its authority to regulate concealed handgun possession on campus. University officials said they would allow concealed weapons on campus in two weeks.

First Amendment

Phelps-Roper v. City of Manchester, ___ F.3d ___ (8th Cir. No. 10-3197, filed 10/16/12). The City of Manchester’s revised ordinance prohibiting picketing or other protest activities within 300 feet of a funeral service or burial beginning one hour before the service until one after the service survives First Amendment intermediate scrutiny because it serves a significant governmental interest (protecting the privacy of family members and other funeral attendees), is narrowly tailored and leaves open ample alternate channels of communication. The Eighth Circuit reversed the grant of summary judgment by the District Court for the Eastern District of Missouri: plaintiffs’ rights to protest homosexuality was not unduly burdened by the revised ordinance, which was content neutral and reasonable as to time, manner and place.

United States v. Alvarez, 567 U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 11-210, filed 6/28/12). In a case involving a conviction under the Stolen Valor Act, which makes it a crime to falsely claim receipt of military decorations or medals and provides an enhanced penalty if the Congressional Medal of Honor is involved, 18 U.S.C. sections 704(b), (c), the Ninth Circuit's decision reversing the conviction and finding the Stolen Valor Act invalid under the First Amendment is affirmed where the Act infringes upon speech protected by the First Amendment. Cf. United States v. Strandlof, 667 F. 3d 1146 (2012).

ACLU v. Alvarez, ___ F.3d ___ (7th Cir. No. 11-1286, 5/8/12), cert. denied, ___ U.S. ___ (No. 12-318, 11/26/12). The Illinois eavesdropping statute makes it a felony to audio record "all or any part of any conversation" unless all parties to the conversation give their consent. 720 ILL. COMP. STAT. 5/14-2(a)(1). The statute covers any oral communication regardless of whether the communication was intended to be private. Id. 5/14-1(d). The offense is normally a class 4 felony but is elevated to a class 1 felony—with a possible prison term of four to fifteen years—if one of the recorded individuals is performing duties as a law-enforcement officer. Id. 5/14-4(b). Illinois does not prohibit taking silent video of police officers performing their duties in public; turning on a microphone, however, triggers class 1 felony punishment. The question here is whether the First Amendment prevents Illinois prosecutors from enforcing the eavesdropping statute against people who openly record police officers performing their official duties in public. More specifically, the American Civil Liberties Union of Illinois ("ACLU") challenges the statute as applied to the organization’s Chicago-area "police accountability program," which includes a plan to openly make audiovisual recordings of police officers performing their duties in public places and speaking at a volume audible to bystanders. Concerned that its videographers would be prosecuted under the eavesdropping statute, the ACLU has not yet implemented the program. Instead, it filed this preenforcement action against Anita Alvarez, the Cook County State’s Attorney, asking for declaratory and injunctive relief barring her from enforcing the statute on these facts. The ACLU moved for a preliminary injunction. The Circuit reverse and remand the district court's dismissal with instructions to allow the amended complaint and enter a preliminary injunction blocking enforcement of the eavesdropping statute as applied to audio recording of the kind alleged here.

Moss v. United States Secret Service, ___ F.3d ___ (9th Cir. No. 10-36152 filed 04/09/12). In a suit stemming from a protest demonstration against President Bush during the 2004 presidential campaign: 1) the district court's ruling denying the defendant Secret Service agents' motion to dismiss a Bivens claim for viewpoint discrimination is affirmed, where the plaintiffs alleged a plausible First Amendment claim, and the agents were not entitled to qualified immunity; but 2) the district court's denial of the defendant police supervisors' motion to dismiss a 42 USC section 1983 claim is reversed, where the plaintiffs did not allege sufficient facts to support a plausible Fourth Amendment claim against the supervisors for use of excessive force.

Identification

Perry v. New Hampshire, 556 U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 10-8974, filed 1/11/12). Around 3 a.m. on August 15, 2008, the Nashua, New Hampshire Police Department received a call reporting that an African-American male was trying to break into cars parked in the lot of the caller’s apartment building. When an officer responding to the call asked eyewitness Nubia Blandon to describe the man, Blandon pointed to her kitchen window and said the man she saw breaking into the car was standing in the parking lot, next to a police officer. Petitioner Barion Perry’s arrest followed this identification. Before trial, Perry moved to suppress Blandon’s identification on the ground that admitting it at trial would violate due process. The New Hampshire trial court denied the motion. On appeal, Perry argued that the trial court erred in requiring an initial showing that police arranged a suggestive identification procedure. Suggestive circumstances alone, Perry contended, suffice to require court evaluation of the reliability of an eyewitness identification before allowing it to be presented to the jury. The Supreme Court held the Due Process Clause does not require a preliminary judicial inquiry into the reliability of an eyewitness identification when the identification was not procured under unnecessarily suggestive circumstances arranged by law enforcement. The Constitution protects a defendant against a conviction based on evidence of questionable reliability, not by prohibiting introduction of the evidence, but by affording the defendant means to persuade the jury that the evidence should be discounted as unworthy of credit. Only when evidence "is so extremely unfair that its admission violates fundamental conceptions of justice," Dowling v. United States, 493 U. S. 342 (internal quotation marks omitted), does the Due Process Clause preclude its admission. Given the safeguards generally applicable in criminal trials, the introduction of Blandon’s eyewitness testimony, without a preliminary judicial assessment of its reliability, did not render Perry’s trial fundamentally unfair.

Illegal Immigration

Moncrieffe v. Holder, 568 U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 11-702, filed 04/23/13). Moncrieffe, a Jamaican citizen here legally, was found by police to have 1.3 grams of marijuana in his car. He pleaded guilty under Georgia law to possession of marijuana with intent to distribute. The Federal Government sought to deport him, reasoning that his conviction was an aggravated felony because possession of marijuana with intent to distribute is a CSA offense, 21 U. S. C. §841(a), punishable by up to five years’ imprisonment, §841(b)(1)(D). An immigration judge ordered his removal. The United States Supreme Cour reversed. If a noncitizen's conviction for a marijuana distribution offense fails to establish that the offense involved either remuneration or more than a small amount of marijuana, it is not an aggravated felony under the Immigration and Nationality Act, and the contrary judgment of the Court of Appeals for the Fifth Circuit is reversed and remanded.

Arizona v. United States, 565 U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 11-182, filed 06/25/12). In a case assessing the constitutionality of an Arizona statute known as S.B. 1070, which was enacted in 2010 to address pressing issues related to the large number of unlawful aliens in the state, the Ninth Circuit's ruling affirming the district court's issuance of a preliminary injunction preventing four of its provisions from taking effect is: 1) affirmed in part, where Sections 3 (misdemeanor for failure to comply with federal alien-registration), 5(C) (misdemeanor for an unauthorized alien to work), and 6 (authorizes officers to arrest without a warrant a person the officer has probable cause to believe has committed any public offense that makes the person removable from the US) of S.B. 1070 are preempted by federal law; but 2) reversed in part, where it was improper to enjoin section 2(B) (requiring officers conducting a stop, detention, or arrest to make efforts to verify the person's immigration status with the Federal Government) before the state courts had an opportunity to construe it and without some showing that section 2(B)'s enforcement in fact conflicts with federal immigration law and its objectives

Interrogation

Howes v. Fields, 556 U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 10-680, filed 02/21/12). Service of a prison term, without more, is not enough to constitute Miranda custody. Questioning a person who is already in prison does not generally involve the shock that very often accompanies arrest. A prisoner is unlikely to be lured into speaking by a longing for prompt release. And a a prisoner knows that his questioners probably lack authority to affect the duration of his sentence.

United States v. Fricosu, No. 10-cr-00509-REB-02, 2012 WL 182121 (D. Colo. Jan. 23, 2012). Fricosu and her husband are facing bank fraud, wire fraud, and money laundering charges for allegedly seeking to take title to foreclosed homes. Officers seized a laptop believed to contain evidence, but its files are encrypted. The government sought an order requiring Fricosu to supply the encryption key, and Friscosu invoked her Fifth Amendment privilege against self-incrimination. The court then concluded that no testimony was associated with the compelled production of the unencrypted contents of her laptop computer. In reaching this conclusion, the court heavily relied upon a tape recording of a phone call introduced by the Government between Friscosu and another individual, where the defendant admitted, "[The content at issue] was on my laptop." Friscosu later confirmed in the call that the content existed when she was asked, "It was on your laptop[?]," and Friscosu responded, "Yes." Throughout this extensive exchange, Friscosu essentially admitted every testimonial communication that may have been implicit in the production of the unencrypted contents. Cf., In Re Grand Jury Subpoena for John Doe, below.

Juveniles

Alford v. Greene & Camareta v. Greene, 556 U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (Case Nos. 09-1478 & 09-1454, filed 05/26/11). When government officials intend to question a child abuse victim at a school, do they have to show an exception to the warrant requirement? The Ninth Circuit held these interviews were unreasonable seizures in the absence of a warrant, court order or parental consent. The Supreme Court vacated and remanded.

Miller v. Alabama, 565 U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 10-9646, filed 06/25/12). In consolidated petitions for habeas corpus relief, where both petitioners were convicted of murder at the age of 14 and sentenced to a mandatory term of life imprisonment without the possibility of parole, denial of petition is reversed and remanded where the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile homicide offenders.

Labor Law

Knox v. Service Employees International Union, Local 1000, 565 U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 10-1121, filed 6/21/12). The Court called agency shop compulsory fees a "significant impingement on First Amendment rights." On the main issue, the majority (Alito, Roberts, Scalia, Kennedy, and Thomas) had little trouble finding that SEIU should have sent a new Hudson notice for the special assessment. However, the majority opinion went further. It held that a union cannot use figures based on an audit of regular operations to support the calculation of chargeable versus nonchargeable expenses for a special assessment. The Court acknowledged that it is not easy for unions to determine what may be chargeable in advance. However, the Court held that unions must bear the risk of collecting too little—versus employees bearing the risk of paying too much—since the union’s constitutional rights are not at stake. Accordingly, the Court held that when a union imposes a special assessment or dues increase, there must be a new Hudson notice. More significantly, the majority decision delved into whether the First Amendment required an opt-in system versus an opt-out system. After discussing prior precedent, the majority held that nonmembers may only be required to pay expenses if they affirmatively consent (opt-in).

Wisconsin Educ. Ass’n Council v. Walker, 824 F. Supp. 2d 856 (D. Wis. 2012). Court Leaves Intact Most Of Wisconsin’s New Law Eliminating Collective Bargaining. A 2011 Wisconsin bill created two new classifications of public employees: "General" and "public safety." Under the Bill, the State left the rights of public safety employees to unionize and collectively bargain unchanged, while general employees lost most of these rights. A group of unions representing general employees filed a federal court lawsuit challenging three of the changes brought about by the Bill: (1) The elimination of mandatory dues and fair share fees and the stripping of all collective bargaining rights, except on "total base wages"; (2) the apparently-unprecedented requirement for annual recertification by an absolute majority of union members (as opposed to conditional or member-driven recertification by a simple majority of those actually voting); and (3) a prohibition on the voluntary withholding of union dues from a general employee’s paycheck. The Federal Court upheld most of the bill's provisions, finding that the unions could not meet their burden of proof with respect to most of the Bill, and that they could not show that the Bill’s principal provisions limiting the collective bargaining rights of general employees and their unions had no "rational basis." The Court found that "the State, however, has not articulated, and the Court is now satisfied cannot articulate, a rational basis for picking and choosing from among public unions, those (1) that must annually obtain an absolute majority of its voluntary members to remain in existence or (2) that are entitled to voluntary assistance with fundraising by automatic deduction, at least not a rational basis that does not offend the First Amendment."

Miscellaneous

National Federation of Ind. Business v. Sebelius, 567 U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 11-393 filed 06/28/12). Obamacare's individual mandate is upheld as within Congress’s power under the Taxing Clause.

Patel v. City of Los Angeles, ___ F.3d ___ (9th Cir. No. 08-56567, filed 7/17/12). In a suit brought by motel owners against the City of Los Angeles, challenging the constitutionality of Los Angeles Municipal Code (LAMC) section 41.49, which requires operators of hotels to maintain certain guest registry information and to make the information available to police officers on request, district court's judgment in favor of the city is affirmed as, the plaintiffs failed to show that they themselves or all hotel owners have a reasonable expectation of privacy in their guest registers, and also failed to show that the inspection of the guest registers authorized by the ordinance is an unreasonable intrusion.

Open Records

Case name unknown, profiled on policeone.com 5/15/2012. The Ohio Supreme Court ruled yesterday that law-enforcement agencies may withhold the identity of police officers who face substantiated threats of injury or death in retaliation for on-the-job actions. The officers' constitutional right to privacy — and personal protection — supersedes Ohio's public-records laws, the justices ruled in the appeal of a case filed by The Cincinnati Enquirer. A police-union president welcomed the ruling, while the newspaper's lawyer said it could inhibit public and news-media review of officers' use of deadly force. The Enquirer had sought the names and identifying information of two police officers who were shot in a 2010 confrontation with members of the Iron Horsemen motorcycle gang at a Cincinnati bar. Cincinnati police refused to release the officers' names, saying they were potential targets for retaliation by the gang because its "national enforcer" was killed in the shootout with officers. The Enquirer received copies of police reports and files with the names of the officers removed, but the paper argued that the redaction of the officers' identities violated public-records laws. The Supreme Court justices relied on a 1998 federal-court ruling involving the Columbus Division of Police to affirm a ruling by Ohio's 1st District Court of Appeals in Cincinnati in The Enquirer's case.

Search & Seizure

Garcia v. Lardeo, ___ F.3d ___ (5th Cir. No. 11-41118, filed 12/12/12). Garcia, a former police dispatcher, was dismissed after photos and text messages on her cell phone revealed that she was violating police department rules. The employer removed her cell phone from her locker and searched it without her permission. Garcia alleged the search was illegal under the Stored Communications Act (SCA). The 5th Circuit disagreed, holding the act does not protect information stored on personal devices such as cell phones, laptops and personal computers. The SCA (18 U.S.C. § 2701(a)) only protects "facilit[ies] through which an electronic communication service is provided" and not the device that is used to access those communication services, the court explained. The relevant ‘facilities’ that the SCA is designed to protect "are not computers that enable the use of an electronic communication service, but instead are facilities that are operated by electronic communication service providers and used to store and maintain electronic storage." Information that an individual stores to his hard drive or cell phone is not in electronic storage under the statute.

State v. Spagnola, 295Kan. 1098, 289 P.3d 68 (No. 101521, filed 12/07/12). TPD Officer Jones stopped a car for running a stop sign. It drove over the curb when coming to a stop, and Jones saw the driver reach down to his right side while coming to a stop. Thinking the driver might be armed, Jones got him out of the car and asked him if he had any "drugs, knives, guns, needles, "or anything like that." The driver said no, but he said a computer monitor in his back seat might be stolen. Jones asked if he could search the driver's pockets and the driver said yes. Jones found methamphetamine in the driver's pockets. The Court held the consent was not valid because two officers were present and before receiving the second consent, Jones had the driver turn around, place his hands behind his back, and interlace his fingers. The search exceeded the valid scope of a Terry search, and going into the pockets was not the least intrusive means available to dispel the officer's suspicion of a threat.

State v. James, ___ Kan.App.2d ___, ___ P.3d ____ (No. 106083, filed 11/09/12). As part of a search incident to arrest, it is reasonable for a law enforcement officer to inspect the text messages on a cell phone found on an arrestee's person for evidence probative of criminal conduct. Police stopped James for having a headlight out, and smelled the odor of alcohol coming from James. The officer went to speak to the passenger and saw an open container of alcohol behind the driver's seat. The officer then placed James in handcuffs and gave him Miranda warnings. James admitted there were cups containing alcohol in the console, and admitted to drinking while driving. The officer then searched the vehicle and found marijuana and scales in the glovebox. James claimed that his brother had left the marijuana in the vehicle, and urged the officer to call his brother, thrusting his hip forward so the officer could reach in James's pocket and get his cell phone. The officer asked if there were any text messages related to drug sales on the phone, and James said no. The officer looked at the text messages and saw two recent messages, one saying, "U got green I will meet U somewhere," and another saying,"Hey T-Ray this is Cotie. U got a 20?" James claimed the search for texts was unconstitutional. The Court of Appeals rejected the argument, finding it was a valid search incident to a lawful arrest. The Supreme Court reversed. See State v. James, above.

United States v. Magana, ___ F.Supp. ___ (USDC WI No. _____ filed ____________). District Judge William Griesbach ruled that it was reasonable for Drug Enforcement Administration agents to enter rural property without permission -- and without a warrant -- to install multiple "covert digital surveillance cameras" in hopes of uncovering evidence that 30 to 40 marijuana plants were being grown. Two defendants in the case, Manuel Mendoza and Marco Magana of Green Bay, Wis., have been charged with federal drug crimes after DEA agent Steven Curran claimed to have discovered more than 1,000 marijuana plants grown on the property, and face possible life imprisonment and fines of up to $10 million. Mendoza and Magana sought suppression of the video evidence, noting that "No Trespassing" signs were posted throughout the heavily wooded, 22-acre property owned by Magana and that it also had a locked gate. A jury trial has been scheduled for January 22, 2013.

United States v. Skinner, ___ F.3d ___ (6th Cir. No. 09-6497, filed 08/14/12). The government used GPS data emanating from Melvin Skinner’s pay-as-you-go cell phone to determine its real-time location. This information was used to establish Skinner’s location as he transported drugs along public thoroughfares between Arizona and Tennessee. As a result of tracking the cell phone, DEA agents located Skinner and his son at a rest stop near Abilene, Texas, with a motorhome filled with over 1,100 pounds of marijuana. The district court denied Skinner’s motion to suppress all evidence obtained as a result of the search of his vehicle, and Skinner was later convicted of two counts related to drug trafficking and one count of conspiracy to commit money laundering. The convictions must be upheld as there was no Fourth Amendment violation. Skinner did not have a reasonable expectation of privacy in the data emanating from his cell phone that showed its location.

State v. Parker, ___ Kan.App.2d ___, ___ P.3d ____ (No. 105558 filed 08/09/12). Parker raped a 94-year old woman at a hospital, and was still present when police arrived, having been detained by hospital staff. Once handcuffed, a SANE/SART nurse swabbed Parker's hands. He contended the DNA evidence was illegally seized. The Court of Appeals thought otherwise, holding it was a valid warrentless search because there was probable cause combined with exigent circumstances.

State v. Jones, ___ Kan.App.2d ___, ___ P.3d ____ (No. 106605, filed 06/29/12). Detention of the defendant for at least 20-30 minutes to await a drug-sniffing dog was unreasonably prolonged and this alone would justify suppression of the evidence ultimately discovered through use of the K-9 unit, even if the officer had gained reasonable suspicion that the vehicle might contain controlled substances. A Garden City officer stopped the vehicle in early morning hours for erratic driving. The driver had slurred speech and appeared to have cotton mouth, but the officer could not smell the odor of an alcoholic beverage. The officer did not proceed with an investigation for driving under the influence of drugs or alcohol, but rather sought the driver's identification and then asked her to step from the vehicle. When the driver denied the officer permission to search the vehicle, the officer contacted his supervisor, Sergeant Martinez, who arrived approximately 15 minutes, later, then the officers requested a canine, which did not arrive for somewhere between 20 and 40 minutes. Buser dissents, primarily due to the district court's inadequate findings of fact and conclusions of law.

United States v. Neff, ___ F.3d ___ (10th Cir. No. 10-3336, filed ____12). Dennis Dean Neff was transporting 7 kilos of cocaine through the sunflower state when he spied a couple of temporary highway signs indicating that he was quickly approaching a drug checklane. There was no drug checklane, however, a "ruse" drug checklane. DD exited when he saw the sign and turned around. The problem for DD was that officers were watching, and began to follow him. DD had seen the patrol car and appeared "startled." The nearest officer exited his patrol car and stopped DD. Cocaine was found and DD was arrested. DD filed for suppression of the cocaine arguing an unconstitutional stop because the officer lacked reasonable suspicion to believe DD had committed a crime. The 10th Circuit agreed. The panel reminds us that a driver’s decision to use a rural or "dead exit" following drug checkpoint signs is not, standing alone, reasonable suspicion to stop the car. Taking the exit PLUS additional factors are required. Here, DD exiting the highway, his car not being from that county, his not immediately looping back to the highway by using the first driveway, and his being startled when the officer appeared, was insufficient. Even though the U.S. lost, the 10th Circuit held for the first time in our part of the country that ruse lanes are constitutional, and we now know that the above facts do not rise to reasonable suspicion.

State v. Dugan, 47 Kan. App. 2d 582, 588-89, 276 P.3d 819 (2012). Dugan was driving his SUV in Lawrence and rear-ended someone, then drove off. Dispatch relayed his tag number, and an officer spotted him enroute to his residence. She turned on her emergency lights as she pulled into the driveway. Dugan started shutting the garage door. The officer stuck her foot in the door and stopped its progress, then entered the garage and confronted Dugan. Dugan was drunk and admitted being involved in the accident. The Douglas County District Court denied Dugan's motion to suppress evidence. The Court of Appeals reversed, finding insufficient evidence of hot pursuit or exigent circumstances. "[W]e do not share the district court's tolerance for the governmental breach of a private residence and, therefore, reverse that ruling with directions the motion be granted." "A citizen's Fourth Amendment rights do not rise or fall on the schedules of government agents or their predilections for expediency. The framers intended judicially issued warrants as a check on just those inclinations and to preserve for the citizenry a sphere of privacy in their own homes against undue government intrusion. The Fourth Amendment has not yet fallen into such disrepair that it no longer serves that fundamental purpose in a case such as this."

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

Hatcher v. State, A11A2416, 2012 Ga. App. LEXIS 288 (3/15/12). An investigator with the Cherokee County Sheriff's Office learned that someone was using a computer in Cherokee County to share child pornography on the Internet. The investigator ascertained that the Internet Protocol (IP) address used by the child pornographer was assigned to a customer of Comcast Cable Communications, an internet service provider, and the investigator asked Comcast to provide certain information about the account of that customer. The detective obtained a search warrant for the information and faxed a copy to Comcast in New Jersey. Comcast complied, disclosing the name of the customer and her billing address, which was a residential address in Cherokee County. The investigator obtained a warrant to search the residence at the billing address for certain evidence of child pornography, including any computers or electronic data storage devices that he might find there. When the investigator went to the home, he confirmed that it was occupied by a family that subscribed to Comcast internet service. The investigator learned that the family used a wireless router to access the Internet, and he also discovered that Hatcher lived in the basement of the home and used the same wireless router. The investigator interviewed Hatcher, and another officer examined his computer and found files that appeared to contain child pornography. A subsequent forensic examination of the computer revealed numerous files containing child pornography. Hatcher was arrested and filed a motion to suppress arguing that the subscriber information obtained from Comcast was obtained in violation of Fourth Amendment and as such all evidence derived from that information should be suppressed. The trial court denied Hatcher's motion and he appealed to the Court of Appeals of Georgia. The Court held there was no expectation of privacy based on Smith v. Maryland, 442 U.S. 735, 743-744 (1979) (no legitimate expectation of privacy in information he voluntarily turns over to third parties). The court also noted that Hatcher was not the person who subscribed with Comcast for the account on which he accessed the internet. Rather, Hatcher lived in the basement of the actual subscriber for about two months and accessed the internet via the homeowner's wireless router. The court stated that the record on appeal did not state what his relation was with actual subscriber and whether he was a renter or a guest. In light of this significant fact, the court then stated that even if a subscriber might have a reasonable expectation of privacy in her own account information, a mere user of the account would not have a reasonable expectation of privacy in it, especially in the absence of some special relationship between that person and the subscriber. See also United States v. Perrine, 518 F3d 1196, 1204 (I) (10th Cir. 2008) ("Every federal court to address this issue has held that subscriber information provided to an internet provider is not protected by the Fourth Amendment's privacy expectation.").

Clark v. City of San Antonio, No. 11-50010, 2012 U.S. App. LEXIS 4978 (5th Cir. 03/09/12). A confidential informant told police he he had purchased methamphetamine from a man named "Randy" at a home in Leon Valley, San Antonio. The informant further told police Randy was allowing others to "cook" methamphetamine at the same house. Police obtained a warrant and, after obtaining approval from supervisors, served the warrant in a no-knock fashion at 9:40 p.m. They did not find any drugs, but found two females, one nude, in the residence. The raid lasted a total of approximately an hour and 45 minutes. The two ladies sued, claiming a Fourth Amendment violation. The district court granted all defendants summary judgment. The Fifth Circuit reversed, finding enough evidence to establish a city policy to serve all narcotics warrants in a no-knock fashion. "[T]he presence of retail quantities of an easily disposable drug is legally insufficient, without more, to constitute the type of exigency needed to justify a no-knock entry. Richards, Banks, and Cantu all involved searches similarly based on information that drugs were being dealt from the house in question." "Under these circumstances, the disposable nature of methamphetamine was not enough to create exigent circumstances justifying a no-knock entry." "Taken together, the deposition testimony of McManus, Ortiz, Arcuri, and Laurenz, and the City's admission that the search of Appellants' home was conducted in accordance with SAPD policies, are sufficient to create a genuine issue of material fact on the issue of municipal liability."

In Re Grand Jury Subpoena for John Doe, ___ F.3d ___ (11th Cir. Nos. 11-12268 & 11-15421, filed 02/23/12). Officers suspected Doe of downloading child pornography and served a warrant on his hotel room, seizing a laptop and five hard drives, some of which had encrypted portions. The U.S. attorney subpoenaed the unencrypted contents and granted Doe imminuty solely for the act of decryption and production, but reserved deriviative use of any evidence on the drives. Doe refused and the trial judge held him in contempt. The Circuit reversed. It held that Doe’s decryption and production of the hard drives’ contents would trigger Fifth Amendment protection because it would be testimonial, and that such protection would extend to the Government’s use of the drives’ contents. The district court therefore erred in two respects. First, it erred in concluding that Doe’s act of decryption and production would not constitute testimony. Second, in granting Doe immunity, it erred in limiting his immunity, under 18 U.S.C. §§ 6002 and 6003, to the Government’s use of his act of decryption and production, but allowing the Government derivative use of the evidence such act disclosed. Doe would certainly use the contents of his mind to incriminate himself or lead the Government to evidence that would incriminate him if he complied with the district court’s order. Moreover, the Government has failed to show any basis, let alone shown a basis with reasonable particularity, for its belief that encrypted files exist on the drives, that Doe has access to those files, or that he is capable of decrypting the files. The "foregone conclusion" doctrine does not apply under these facts. And the offer of use of production immunity is insufficient to compel production. Immunity coextensive with the Fifth Amendment requires both use and derivative-use immunity.

State v. Adams, ___ Kan. ___, ___ P.3d ___ (No. 101392 filed //12). The Protection, Kansas, police chief stopped a car after it ran a stop sign. The chief noted signs of intoxication and asked the driver if she was impaired. She admitted drinking alcohol and smoking methamphetamine. The chief searched her purse and found a list of meth-making items. The driver said some of those items were at the home she shared with Adams. The police obtained a warrant and searched the home, finding a meth lab. Adams argued the evidence recovered in the home should be suppressed because the deputy that swore to the affidavit in support misrepresented his training, experience, and knowledge regarding the production of controlled substances. The cour started with the familiar rule from Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978) that an affidavit in support of a search warrant is presumed valid, and in most cases, the facts contained therein may not be disputed by the party against whom the warrant is directed. It held that even without the challenged portion the affidavit established probable cause so the motion to suppress was properly denied.

Florence v. Board of Chosen Freeholders, 556 U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 10-945, filed 04/02/12). The Fourth Amendment permits a jail to conduct a suspicionless "strip search" of every individual arrested for any minor offense no matter what the circumstances. Petitioner Albert Florence was arrested on an outdated bench warrant for a non-indictable offense and was subjected to "strip searches" in two separate prison facilities. Florence sued both facilities, alleging that their blanket policies of strip searching all detainees, regardless of their offense, violates the Fourth Amendment. The district court held for Florence, stating that jail officials must show reasonable suspicion to believe minor offenders are some threat to jail security before "strip searching" them. The United States Court of Appeals for the Third Circuit reversed. The Supreme Court agreed with the Third Circuit, holding that where prisoners will be assigned to the general population, the type of search conducted in this case did not violate the Fourth Amendment.

State v. Preston, ___ Kan. ___, ___ P.3d ___ (No. 98629, filed 03/23/12, reversing 41 Kan.App.2d 981, 207 P.3d 1081 (2009)). Court reverses Judge Davis's denial of a motion to suppress on a car stop. Lenexa officers went to OPR after the suspect in a aggravated battery dropped off the victim and then left on foot. As officers approached the area, dispatch advised the suspect may now be in a Cadillac Suburban or Oldsmobile vehicle. The officer saw a black male and black female in a white Cadillac and stopped the vehicle for failure to signal at least 100' before a lane change. Driver said he was going to visit relatives, but could not provide any more detail. The officer was advised the driver was on federal supervision for drug crimes. The passenger owned the car, but deferred to the driver on whether the officer could search the car. The officer said the driver's cell phone was ringing "a lot." The officer saw a box of Cigarillos in the car, and suspected they were used to make blunts. He patted the driver down (with consent) and found $2500 cash in small bills. The driver said he had been unemployed the last six months. The officer searched the car for weapons and noticed the smell of marijuana. He then had a canine search the car and found marijuana and cocaine in a rear passenger ashtray. The court held the stop was okay even if pretextual, saying K.S.A. 8-1548 is a strict liability offense and no other cars need be present. Preston's objection to the pat-down was not preserved, but even if it was it was justified by the nature of the call and the suspect's history. The driver had standing to object to the searches, but the court held they were both reasonable. The weapon search was justified by the nature of the call and the second search was based on probable cause supplied by the odor. The court declined to extend Doyle to cover admission of testimony about the driver's refusal of consent. The court also upheld the admission of prior drug history to show knowledge and intent, and a proper limiting instruction was given. The Court of Appeals affirmed the conviction. The Supreme Court reversed, holding that 60-455 evidence was improperly admitted and the error was not harmless. Where a defendant denies possessing the drugs, their intent is irrelevant.

State v. Wendler, ___ Kan.App.2d ___, ___ P.3d ____ (No. 104469, filed 03/23/12). The district court appropriately suppressed evidence from an RV when the purpose of the traffic stop was concluded nine minutes into the stop, but consent occurred much later. Topeka officer Youse stopped an RV on I-70 for following too closely. The driver produced ID and said he was driving the rented RV from CA to FL. Youse smelled a strong odor of air freshner coming from the RV. Upon Youse's second approach to the RV, he discovered some prior criminal history - now 18 minutes into the stop. Youse closed the stop after about 25 minutes and then performed a Colombo pivot and obtained consent to search the RV. Youse found 20 packages of marijuana packed around the microwave about 46 minutes into the stop. The district court held the initial stop was supported by reasonable suspicion, but that Youse illegally extended the detention beyond that normally required for a traffic stop, and that further detention was not supported by reasonable suspicion. The Court of Appeals agreed.

Terrell v. Smith, 2012 U.S. App. LEXIS 1689 (11th Cir. Decided January 30, 2012). Before stating the facts of the case, it is important to note, that when considering a motion for qualified immunity, the court is required to view the facts in the light most favorable to the non-moving party (here, the plaintiff's version of events). Therefore, the facts presented here are those stated by Mr. Fazio, a friend of the decedent, Aaron Zylstra, who was present during the incident. The personal representative of Zylstra's estate, Terrell, is the plaintiff in this case. As such, the facts presented here may be in dispute and may not fully represent what actually happened during the incident. Before stating the facts, it is important to note that Zylstra and Fazio had been drinking heavily together the night of the incident. Zylstra had driven both to the location where the shooting occurred for the purpose of smoking crack cocaine. That said, the facts, viewed most favorably to the plaintiff, are as follows:

          Fazio recounted that the two police officers at the scene directed him and Zylstra to exit their vehicle and kneel down behind Zylstra's car while holding their hands above their heads. Fazio said that he knelt immediately behind and slightly to the side of the vehicle. Each officer approached the car from a different side with his weapon drawn. One of the officers remained in front of Fazio, while the other walked towards the driver's side of the vehicle. Although Fazio was compliant with the officers' commands, Zylstra acted as if he were going to kneel down, but instead he turned and jumped back into the vehicle. Officer Smith ran after Zylstra and managed to place himself in the open doorway of Zylstra's car, an area that the parties call "the V," as Zylstra attempted to make a U-turn in Smith's direction. Smith continued to run in the V alongside the vehicle as it moved forward, repeatedly warning Zylstra to stop the car. The vehicle's door and frame struck Smith's body as Zylstra attempted to turn the vehicle. Fazio testified that "the under part of the open part of the door was hitting [Smith], kind of pushing him back." After multiple warnings, Smith fired two shots, killing Zylstra.

          Zylstra's estate filed suit and claimed that Smith's use of deadly force constituted excessive force under the Fourth Amendment. Officer Smith filed a motion for summary judgment on the basis of qualified immunity. The district court denied the motion and Smith appealed to the Eleventh Circuit Court of Appeals. The Circuit held that by failing to stop, Zystra was committing a violation of a Florida statute that makes it a third degree felony to fail to stop his vehicle in accordance with the officer's order. Further, the court noted that the officer is under no duty to retreat or abandon his effort to effect an arrest simply because the felony suspect was not being compliant. The court further noted that both Officer Smith and Fazio both testified that Zystra refused to stop his moving car, and actually struck the officer. In light of this fact, the court noted that they have previously held similar uses of deadly force against drivers of vehicles to be constitutionally reasonable under the Fourth Amendment. Further, the court noted that in addition to the threat to Officer Smith, there was also "an immediate and foreseeable risk" to the other officer present and Fazio, as they were also in close proximity. The court held that Officer Smith acted reasonably within the Fourth Amendment when he shot Zystra. Specifically, the court stated:

"Officer Smith was forced to make a split-second decision concerning whether the use of lethal force was necessary. Beyond himself, two other people were within a few feet of the moving vehicle as these rapidly unfolding and uncontrolled events transpired. " Even if in hindsight the facts show that [the officer] perhaps could have escaped unharmed," . . . an objectively reasonable law enforcement officer could well have perceived that the moving vehicle was being used as a deadly weapon, especially after the driver had been repeatedly ordered to stop. In short, Smith was attempting to make an arrest that he had the legal right to make while standing in a position where he was legally entitled to be. Zylstra refused to heed Smith's commands to stop the vehicle and turned the car "in a dangerous and aggressive manner which provided the officers with probable cause to believe that [Zylstra] . . . posed a threat of serious physical harm or death to the officers, or other passersby, especially in light of the speed with which the incident unfolded." . . . The use of lethal force was objectively reasonable under the Fourth Amendment."

          Although the court was not required to do so, they also analyzed whether there was any "clearly established" law that would have put Officer Smith on notice that shooting Zystra would have been unreasonable under the Fourth Amendment. Noting that this "clearly established law" must come from the U.S. Supreme Court, the Eleventh Circuit Court of Appeals or the Supreme Court of Florida, the court concluded that the law was not clearly established that Officer Smith acted unreasonably when he shot Zystra. The Circuit reversed the district court's denial of qualified immunity for Officer Smith. It held (1) that the officer acted in an objectively reasonable manner under the Fourth Amendment when he shot Zystra and (2) even if the officer had not been reasonable under the Fourth Amendment, the law was not clearly established; therefore, the officer would still be entitled to qualified immunity.

State v. Johnson, ___ Kan. ___, ___ P.3d ___ (No. 100728, filed 03/02/12), affirming 42 Kan. App. 2d 799, 217 P.3d 42 (2009). Wichita officers responded to an alleged burglary. Defendant Vicky Johnson was in an apartment that her boyfriend had been asked to vacate. Officers entered with weapons drawn, and encountered two women boxing up stuff. Defendant told officers she was there to help her boyfriend clear out his stuff. While speaking with an officer in the kitchen, Defendant asked for a cigarette and reached for her purse. The officer denied her request, but she grabbed a cigarette package out of the purse. The officer took it away from her, looked inside and saw a crack pipe. The officer then searched the purse, finding a prescription bottle containing cocaine. The Court of Appeals held the evidence should have been suppressed. It found the facts supported a determination the officer had reasonable suspicion her personal safety was at risk, although it was a close call. However, it held that looking into the cigarette package exceeded the scope of a valid Terry search, because once the officer seized it, the Defendant no longer had access to it. Judge Hill dissented, saying the Court's analogy of the cigarette package to the car in Gant was too tenuous. The Supreme Court affirmed.

Ryburn v. Huff, 565 U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 11-208, filed 01/23/12). Burbank officers were investigating a threat that a student was going to "shoot up" the school. Officers learned that Vincent Huff had been absent from school for two days and that he was frequently subjected to bullying. The officers went to Vincent's house to interview him. They got no answer, and no one would answer the phone, but Ms. Huff answered her cell phone and states that her and Vincent were in the house. When officers asked them to open the door, Mrs. Huff hung up on them. Her and Vincent came out a few minutes later, and officers asked to speak inside. Ms. Huff refused. Officers asked about guns in the house, and Ms. Huff turned and ran towards the house. Officers obviously followed them in. The officers remained inside the house for a total of 5 to 10 minutes. During that time, the officers talked to Mr. Huff and Vincent. They did not conduct any search of Mr. Huff, Mrs. Huff, or Vincent, or any of their property. The officers ultimately concluded that the rumor about Vincent was false, and they reported their conclusion to the school. Huffs sued, claiming the entry violated their Fourth Amendment rights. The District Court entered a judgment in favor of the officers by granting them qualified immunity. A divided panel of the Ninth Circuit held that the two officers that entered the house last (the ones that believed they had consent) were entitled to qualified immunity. However, they reversed the grant of qualified immunity for Officer's Ryburn and Zepeda holding that "any belief that the officers or other family members were in serious, imminent harm would have been objectively unreasonable" since Mrs. Huff "merely asserted her right to end her conversation with the officers and returned to her home." The Supreme Court reversed, holding the situation presented exigent circumstances for the entry. In rejecting the Ninth's circuit's reasoning, the court said, "the panel majority did not heed the District Court's wise admonition that judges should be cautious about second-guessing a police officer's assessment, made on the scene, of the danger presented by a particular situation. With the benefit of hindsight and calm deliberation, the panel majority concluded that it was unreasonable for petitioners to fear that violence was imminent. But we have instructed that reasonableness "must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight" and that "[t]he calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments--in circumstances that are tense, uncertain, and rapidly evolving." Graham v. Connor, 490 U. S. 386, 396-397 (1989). Judged from the proper perspective of a reasonable officer forced to make a split-second decision in response to a rapidly unfolding chain of events that culminated with Mrs. Huff turning and running into the house after refusing to answer a question about guns, petitioners' belief that entry was necessary to avoid injury to themselves or others was imminently reasonable."

State v. Butts, ___ Kan.App.2d ___, ___ P.3d ____ (No. 104817, filed 01/20/12). A KCK officer stopped Butts's car for speeding. The officer testified the car was going about 45 miles per hour in a 30-mile-per-hour speed zone. The officer's speed determination was an estimate based upon his observations, training, and experience with radar and speed detection. His visual estimation was not confirmed by any speed measurement device, stopwatch, or pacing of the vehicle by the officer. After turning on the vehicle, the officer saw it swerving within its own lane of traffic for about 4 blocks. The officer stopped the car due to a concern the driver might be drunk. The officer noted usual indicators of intoxication. A breath test showed Butts driver at 0.141, and he had crack in his pocket. Butts alleged there was no reasonable suspicion for the stop. The Court of Appeals disagreed. "We conclude that a law enforcement officer's observation of a moving vehicle which results in the officer's estimation that the vehicle is moving in excess of the posted speed limit may constitute, under the totality of the circumstances, reasonable suspicion that the driver is speeding in violation of law."

United States v. Jones, 565 U.S. ___, 132 S. Ct. 945, ___ L.Ed.3d ___ (No. 10-1259, filed 01/23/12). Jones was a suspect in a drug distribution scheme. Police obtained a warrant allowing installation of a GPS tracker on his car, but did not install it within 10 days within the District of Columbia as required by the warrant. In any event, the police installed the device while Jones's car was sitting in a public parking lot, and monitored his whereabouts for 28 days. The D.C. Circuit suppressed the evidence, holding that a warrant is required if there is a physical trespass to an "effect." The Supreme Court agreed. It held that the Katz expectation of privacy approach supplemented, not displaced, the Fourth Amendment test of physical intrusion onto a constitutionally protected area. Since there was such a trespass, a warrantless Fourth Amendment search occurred. It distinguished prior beeper cases because they involved placement of the device with consent before the suspect acquired them. The Court went on to hold that the government's argument that tracking Jones for 28 days was a reasonable search was forfeited because it had not been presented below. Justice Alito, concurring, called the judgment "unwise." He stated the decision "strains the language of the Fourth Amendment; it has little if any support in current Fourth Amendment case law; and it is highly artificial." ___ U.S. at ___, Alito, J. concurring.

Sentencing

Dorsey v. United States, 565 U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 11-5683, filed 06/21/2012 ). In a sentence appeal involving the applicability of the Fair Sentencing Act (Act), which took effect on August 3, 2010 and reduced the disparity between the amounts of crack cocaine and powder cocaine needed to trigger mandatory minimum prison terms, the Seventh Circuit's decision affirming a 2010 sentence for unlawfully selling crack in 2008 that did not apply the Act is vacated where the Act's new, lower mandatory minimums apply to the post-Act sentencing of pre-Act offenders.

Southern Union Co. v. United States, 565 U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 11-94, filed 06/21/2012). In a case involving a criminal fine for conviction of violating the Resource Conservation and Recovery Act of 1976 (RCRA) for having knowingly stored liquid mercury without a permit at a subsidiary's facility, the First Circuit's ruling upholding the fine because it held that Apprendi v. New Jersey, 530 U. S. 466, does not apply to criminal fines, is reversed, as the rule of Apprendi applies to the imposition of criminal fines.

Vagueness

State v. Teter, ___ Kan.App.2d ___, ___ P.3d ____ (No. 105495, filed 5/11/12). Kevin Teter appeals his conviction of one count of unlawful acquisition of pseudoephedrine in violation of K.S.A. 2007 Supp. 65-7006(d) (now codified at K.S.A. 2011 Supp. 21-5709[d]). This statute makes it unlawful for any person to purchase more than 3.6 grams of pseudoephedrine base or ephedrine base in any transaction or to purchase more than 9 grams of pseudoephedrine base or ephedrine base within a 30-day period. Teter argues that the statute is unconstitutionally vague and overbroad. Teter's constitutional challenges are rejected and the court concludes that the statute is rationally related to the legitimate interest of preventing the manufacture of methamphetamine in Kansas.

City of Lincoln Center v. Farmway CO-OP Inc., 47 Kan.App.2d 335, 274 P.3d 680 (2012), aff'd in part, reversed in part, ___ Kan. ___ (2013). Farmway expanded its grain drying facilities and neighbors complained about the noise and dust generated by the facility. Farmway was convicted of noise and nuisance violations and appealed. It filed a motion to dismiss alleging the noise ordinance was unconstitutionally vague because it failed to incorporate a reasonable person standard. The Court of Appeals agreed. A city noise ordinance that makes it illegal to "make, continue, maintain or cause to be made or continue any excessive unnecessary, unreasonable or unusually loud noise which either annoys, disrupts, injures or endangers the comfort, repose, health, peace or safety of others within the City," is too vague to be enforced. The ordinance does not give fair warning to those potentially subject to its reach because there are no objective standards imparted. Just as it was the case in Luna, the Lincoln ordinance contains "[l]oaded phrases and words." 28 Kan. App. 2d at 416. The difference here is that the Lincoln ordinance contains more of these "[l]oaded phrases and words." In substance, the Lincoln ordinance and the ordinance in Luna are really no different. The inclusion of the word "unreasonable" in the Lincoln ordinance does not cure its vagueness. Additionally, its public nuisance ordinances, based on UPOC 9.5 and 9.6, are also too vague to be enforced. The prohibited conduct under the Lincoln nuisance ordinances criminalizes any conduct "which injures or endangers the public health, safety or welfare." This ordinance does not give fair warning to those persons potentially subject to it as to what conduct is criminalized. The district court stated the ordinance is "so vague and indefinite that it fails to warn." Further, the ordinance does not adequately guard against arbitrary and discriminatory enforcement. This appears to be apparent through the evidence, or lack thereof, that Farmway has ever been out of compliance with regulatory standards for dust and industrial noise under State and Federal standards.




2011 Case Update List

January 1, 2011 through December 31, 2011 (or thereabouts)

Quick Links to prior year lists.

Appeals

Albright v. State, ___ Kan. ___, ___ P.3d ___ (No. 102454, filed 05/20/11). K.S.A. 60-1507 movants who have counsel are entitled to the effective assistance of that counsel, and if counsel's performance was deficient for failure to file a timely appeal, as a remedy a 60-1507 movant should be allowed to file an out-of-time appeal pursuant to State v. Ortiz.

State v. Thompson, ___ Kan.App.2d ___, ___ P.3d ____ (No. 103633, filed 03/11/11). A defendant tried before a district judge (due to the magistrate's illness) but sentenced by a magistrate still has a right to appeal to district court and request a jury trial.

Civil & Criminal Liability

Thomas Russell III et al. v. City of Chicago, Case No. 10 C 525 (N.D.Ill., August 18, 2011). A federal jury awarded a family $333,000 after a Chicago police officer shot and killed the family’s nine-year-old Labrador retriever. To add insult to injury, the jury awarded $2,000 in punitive damages against the officer who shot the dog, and $1,000 in punitive damages against the supervisor who made the decision to arrest one of the plaintiffs.

Henry v. Storey, ___ F.3d ___ (10th Cir. No. 10-2211, filed 10/03/11). Albuquerque officer Storey saw Henry driving a rental vehicle around midnight and ran his tag. The tag was reported as stolen. Storey stopped the car and officers conducted a felony car stop, including pointing their guns at Henry, ordering him back to the police vehicle, and handcuffing him. When officers found out the vehicle was erroneously reported as stolen, they released Henry. Henry sued, alleging the stop was the result of racial profiling and officers used excessive force. A jury found for the defendants. Henry appealed, claiming the force was excessive because there was no evidence the rental vehicle was taken by force, and Officer Storey only ran his tag because he was black. The Circuit rejected Henry's claims. It held that pointing your gun at someone is not excessive force if the facts justify it, and here they did. It distinguished prior gun-pointing cases Cortez v. McCauley, 478 F.3d 1108 (10th Cir. 2007), United States v. Neff, 300 F.3d 1217 (10th Cir. 2002), and Lundstrom v. Romero, 616 F.3d 1108 (10th Cir. 2010), as not on point. It also found no personal participation on the racial profiling claim, because Storey was granted judgment as a matter of law on this claim and there was no evidence that the officer remaining on this claim ran his tag.

Brooks v. Seattle and Mattos v. Agarano, ___ F.3d ___ (9th Cir. filed 10/17/2011, 2011 U.S. App. LEXIS 20957 (9th Cir.2011), pet. for writ of cert. filed per 2/13/12 article on policeone.com). In these consolidated en banc decisions, the Ninth Circuit found that the actions of the officers in both cases were unconstitutional, but then gave the officers qualified immunity. Brooks involved the car stop of a woman who was 7 months pregnant. When Brooks, the female, refused to sign the citation she was told she was under arrest however she resisted the officers' attempt to take her into custody. The officers ended up using the TASER®, in the drive-stun mode three times to achieve custody. In Mattos, officers used the TASER® in dart mode, allegedly without warning, on a purported female domestic violence victim who was questioning why officers were attempting to arrest her husband inside their residence. The woman pushed away from the officer, allegedly because he was smashing against her breasts in an attempt to get to her husband. She was charged with obstruction. The Circuit determined the intermediate use of force in the form of the Taser was excessive in both cases based on Graham v. Connor factors.

Lucas v. City of Oakland, Case No. Unknown (Profiled in San Francisco Chronicle, C-3, 11/8/11). A former Oakland police officer must pay $40,000 out of his own pocket to two men who were illegally strip-searched in public and have already been awarded at least $100,000 apiece in damages. Spencer Troy Lucas and Kirby Bradshaw had their pants pulled down on a busy West Oakland street in 2005 by police after then-Officer Ingo Mayer stopped them for no lawful reason, U.S. District Judge Marilyn Hall Patel wrote in an August ruling after a bench trial. In the ruling, the judge ordered the city to pay $105,000 in compensatory damages to Lucas and $100,000 to Bradshaw. On Friday, the judge ordered Mayer to pay $25,000 to Lucas and $15,000 to Bradshaw. "She thought it was important to send a message to penalize this officer for his flagrant violation of constitutional rights," the men's attorney, Michael Haddad, said Monday. Mayer retired on disability as a result of the trial, the judge said. Lucas and Bradshaw testified "to their humiliation and feelings of degradation as a result of this public spectacle, as well as the subsequent recurrent memories of feeling terrorized," Patel wrote. Lucas was driving a Cadillac when he and Bradshaw were pulled over by Mayer at 32nd Street and Martin Luther King Jr. Way in West Oakland on Dec. 15, 2005. Mayer testified that he had stopped the car for a traffic violation but could not provide a reason for having done so, Patel said. Mayer handcuffed Lucas and undid his belt buckle, causing Lucas' pants to fall to his ankles, Patel wrote. Then the officer asked Lucas if he had any drugs in his buttocks, pulled his boxer shorts halfway down and shook them against his genitals as a crowd gathered to watch, the judge wrote. Another officer similarly searched Bradshaw at Mayer's direction, Bradshaw testified. City officials had no immediate comment Monday.

Case Name and Number Unknown. Reported on the Secret List 11/08/11. A Monmouth County (New Jersey) court held a fire department 60% responsible and the electric power company 40% responsible for injuries suffered when a man stepped on a downed 7200 volt electric line in his home driveway. The damage award was $20.5M. The court determined that the fire department departed the scene without taking sufficient action to prevent the accident. The jury awarded the $20.5 million in damages Friday after the man lost an arm and a leg in 2007 after stepping on those live electrical wires that had fallen on his driveway during a storm. The man was awarded $18.5 million and his wife, Patricia, was awarded $2 million. A jury deliberated more than 5 hours last week before they returned the unanimous verdict that found Jersey Central Power & Light Co. 40 percent responsible for the injuries and the Northside Engine Company, a fire company in Tinton Falls, 60 percent responsible. The verdict amount was to cover medical costs, disability, deformity, physical suffering and the cost of prosthetic devices which have to be changed every three to five years.

Rucker v. City of Pittsburgh, Case No. Unknown - Profiled on PoliceOne.com on 10/19/11). The Pittsburgh City Council has approved paying $62,000 to cover the attorney fees of a man who won just $269 when a federal court jury found officers were wrong to use a stun gun on him. The jury delivered that verdict two months ago, saying 29-year-old Robert Rucker of Penn Hills was entitled to reimbursement for his medical bill but not $75,000 or more in other damages he was seeking. Rucker says he was complying with police orders when an officer used the stun gun on him in 2006. Police suspected he hit his girlfriend with his car, but Rucker says she jumped on it during a fight and fell off. Tuesday's council vote settles a claim by Rucker's attorneys, who wanted $92,000 in fees for winning the case.

Chelf v. State, ___ Kan.App.2d ___, ___ P.3d ____ (No. 103450, filed 09/23/11). An inmate was injured and attempted to sue the state, but didn't comply with the Institution's 10-day notice requirement, saying he didn't know about it. The Court of Appeals applied the familiar maxim: "[i]gnorance of the law excuses no one; not because courts assume everyone knows the law, but because this excuse is one all will plead and no one can refute." Dezaio v. Port Authority of NY and NJ, 205 F.3d 62, 64 (2d Cir. 2000); see also State ex rel. Murray v. Palmgren, 231 Kan. 524, 536, 646 P.2d 1091 (1982) ("'Ignorance of the law is no excuse.'"); Flott v. Wenger Mixer Manufacturing Co., 189 Kan. 80, 88, 367 P.2d 44 (1961) (stating that parties in litigation are presumed to know the law).

California v. Stenroos, Case No. Unknown (Profiled in Police Magazine, September 13, 2011). A Los Angeles School Police officer who faked his own shooting and triggered a massive, costly police manhunt in the San Fernando Valley has been found guilty. Jeff Stenroos, 31, was convicted of five of the six counts against him in a non-jury trial, including planting false evidence, insurance fraud, giving false evidence, workers compensation fraud and a misdemeanor count of making a false report of an emergency. He could face a sixth count from Van Nuys Superior Court Judge Richard N. Kirschner for filing a false police report. Stenroos faces up to five years in prison at a Dec. 14 sentencing. Also, city officials are seeking more than $350,000 in restitution from Stenroos to cover the costs of the Jan. 19 dragnet, and the school district is seeking $58,000 in medical costs. Stenroos initially claimed he was shot and then later told officers he had accidentally fired his weapon. Los Angeles Police detectives eventually unravelled the story when ballistics tests didn't support his version of the story.

In Re Estate of Belden v. Brown County, Kansas, ___ Kan.App.2d ___, ___ P.3d ____ (No.104,246 filed 08/26/11). Plaintiff filed suit in federal court after her son, Jeffrey Ray Belden, committed suicide while an inmate in the Brown county jail. Plaintiff refiled her state claims in state court. The district court granted summary judgment to defendants on plaintiff's claims of negligence, negligent hiring/training/supervision, and inadequate policies and procedures. The Kansas Court of Appeals affirmed summary judgment on the negligent hiring/training/supervision claim and the policies and procedures claim, but it reversed and remanded the negligence claims for trial. The court defined the scope of duty to an inmate according to Restatement (Second) of Torts 314A. The court said jails stand in a special relationship to the persons they detain and have a duty to take reasonable action to protect them against unreasonable risk of physical harm, even harm done to themselves. The court said the reasonableness standard is flexible and differs among institutions, noting that what is reasonable in the Brown County jail may not be reasonable elsewhere. The court next considered whether there was a fact question about the existence of a breach of duty or causation. The Court of Appeals held that the facts viewed in the light most favorable to the plaintiff could allow a jury to return a verdict for the plaintiff. The court highlighted the following facts:

 

        Belden was in a cell in the general population. After exhibiting belligerent behavior during the day, he covered the window of his cell with paper. After unsuccessfully ordering Belden to remove the paper, the deputy called his supervisor, the jail administrator, at home and was told to wait for a second officer, then enter the cell, remove the paper, and transfer Belden to a close observation cell

        Jail policy prohibited obscuring cell windows. The court stated that the self-evident purpose behind the policy was to prevent inmates from avoiding observation while undertaking something dangerous, nefarious, or even self-destructive

        The jail administrator testified that an obstruction of a cell window should be removed "as soon as possible" although doing so requires two officers for safety reasons

        Jail policy provided that those in the general population be observed once an hour but that inmates in the close observation cell be observed every 15 minutes because persons at immediate risk of harm were to be placed there

 

        The jail experienced either a suicidal inmate or an inmate demonstrating a suicide risk every 2 ½ to 3 ½ weeks, making it a fairly common event

        The jailer waited about 1 ½ hours after being instructed to remove Belden from his cell to attempt to do so.

        Given that the deputy was instructed to move Belden to a cell requiring observation every 15 minutes, the deputy should have monitored Belden as frequently while he remained in the regular cell but did not do so


Of perhaps greater significance is the Court of Appeals' conclusion about the potential liability of the jail administrator. The court held a jury could conclude that the administrator was "insufficiently emphatic and explicit in giving direction" to the deputy in light of circumstances and "made no effort" to follow up with the deputy to assure his directive had been addressed. The court said the jail administrator should have given the deputy "a direct order-in those words-to get Belden out of the situation in which he had placed himself."

Glik v. Cunniffe,, ___ F.3d___ (1st Cir. No. 10-1764, filed 08/26/11). Arresting someone for filming the police is a constitutional violation, a Federal Appeals Court has ruled. The case began when Simon Glik was taken into police custody for recording an arrest with his cell phone camera, according to Tech Dirt. Glik told police he saw an officer punch the suspect and believed their use of force was excessive, sources say. Officers reportedly asked him to stop recording because audio recording — a capability of Glik’s phone — violated Massachusetts wiretap laws. Glik was charged with disturbing the peace and aiding in the escape of a prisoner — charges that were later dropped — but he sued the officers who arrested him and the City of Boston for failing to investigate the case further. His First and Fourth Amendment rights were violated, he said. The police officers filed for qualified immunity, which is designed to protect them against frivolous charges, but the district court ruled in Glik’s favor, unequivocally stating that recording police in public is protected under the First Amendment.

 

"A citizen’s right to film government officials, including law enforcement officers, in the discharge of their duties in a public space is a basic, vital, and well-established liberty safeguarded by the First Amendment."


The court also ruled that the use of Massachusetts wiretapping laws to arrest Glik was a violation of his Fourth Amendment rights. The court stated, "The fact that the officers were unhappy they were being recorded during an arrest . . . does not make a lawful exercise of a First Amendment right a crime." See also Robinson v. Fetterman, 378 F. Supp. 2d 534 (E.D. Pa,. 2005); Kelly v. Borough of Carlisle, 622 F. 3d 248 (3d Cir, 2010); Bowens v. Ary, Inc., 794 N.W. 2d 842 (Mich Sup Ct, 2011).

Walker v. Davis, ___ F.3d ___ (6th Cir. No. 09-5949, filed 08/22/2011). A police officer who "intentionally" rammed a speeding motorcyclist was not entitled to qualified immunity in civil litigation resulting from the incident because he had clearly violated the motorcyclist's constitutional rights. Thomas Germany was killed in 2008 while riding a motorcycle across an empty field after a low-speed police chase, when Deputy Sheriff Danny Davis rammed the motorcycle that he was riding. Germany was thrown from the motorcycle and dragged underneath the cruiser, crushing him to death. Shortly before the incident, a police officer had clocked Germany riding his motorcycle at 70 miles per hour in a 55 miles per hour zone. That officer tried to pull Germany over for speeding, but Germany refused to stop. Deputy Davis heard about the pursuit over the radio and joined in the chase. The entire pursuit lasted about five minutes and took place on empty stretches of highway. Thomas Germany never went above 60 miles per hour during the chase itself. He ran one red light. Qualified immunity shields "government officials performing discretionary functions ... from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." The doctrine allows an officer to make a reasonable mistake as to what the law requires, and still receive qualified immunity. Here, the court reasoned that plowing down Germany's motorcycle because Germany evaded a traffic stop in a low-speed chase was excessive; Germany posed no immediate threat to anyone as he rode his motorcycle across an empty field in the middle of the night in rural Kentucky. The Sixth Circuit Court of Appeals, when the viewing the facts in the light most favorable to Germany's estate, (hence the "intentional" qualifier), decided Deputy Davis's mistake was not reasonable. The court determined that the facts demonstrated a violation of a clearly established constitutional right; that does not, however, mean that the court ruled Deputy Davis intentionally rammed Germany's motorcycle. The question of whether Deputy David acted intentionally - he maintains that he was unable to stop - is an ultimate issue for a jury.

Wal-Mart Stores, Inc. v. Betty Dukes, 556 U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 10-277, filed 06/20/11). Respondent Betty Dukes and other women have brought a Title VII employment discrimination case against Petitioner Wal-Mart Stores. The United States District Court for the Northern District of California certified a class action comprised of all women employed at any Wal-Mart store since December 26, 1998 who may have been or will be subjected to Wal-Mart's allegedly discriminatory practices and policies. Wal-Mart appealed, challenging the class certification, but the United States Court of Appeals for the Ninth Circuit affirmed the district court's ruling. Wal-Mart appealed, arguing the class certification does not meet the requirements of Federal Rule of Civil Procedure 23(a). Wal-Mart also claims that class certification was improper under Federal Rule of Civil Procedure 23(b)(2) because the employees primarily seek monetary compensation in the form of back pay, and Rule 23(b)(2) does not authorize certification of claims seeking monetary relief. The Supreme Court agreed with Wal-Mart. It noted that plaintiffs wish to sue about literally millions of employment decisions at once. Without some glue holding the alleged reasons for all those decisions together, it would be impossible to say that examination of all the class members’ claims for relief will produce a common answer to the crucial question of why some were disfavored. It also held the backpay claims were improperly certified. It held that claims for individualized relief, like backpay, are excluded, and Rule 23(b)(2) applies only when a single, indivisible remedy would provide relief to each class member.

Tichenor v. City of Topeka, Shawnee County Case No. 09C799, tried week of 5/23/11 in Div. 6. Suit alleged that Scott Scurlock used excessive force in arresting suspect after a short pursuit. Plaintiff was pulled over for speeding about 12:38 a.m. on Aug. 9, 2008, by a Shawnee County sheriff's patrol car containing a deputy and Scurlock, who were serving with an anti-gang task force. The petition acknowledges Tichenor failed to stop as they followed him for several blocks with their lights and siren on. The petition contends Tichenor stopped in front of his home and was cooperating while being taken into custody when Scurlock put his knee onto Tichenor's head as his face was against the pavement, breaking his jaw. The jury returned a verdict for the defense, finding plaintiff 80% at fault. Plaintiff filed a notice of appeal on 6/20/11.

Ashcroft v. Al-Kidd, 556 U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 10-98, filed 5/31/11). The Federal Bureau of Investigation arrested Respondent Abdullah al-Kidd as a material witness in a terrorism case. Al-Kidd sued the former United States Attorney General, Petitioner John Ashcroft, alleging that he used the material witness statute, 18 U.S.C. § 3144, as a pretext to hold and investigate al-Kidd as a terrorism suspect in violation of his Fourth Amendment rights. Ashcroft asserted absolute immunity, claiming that the use of a material arrest warrant constituted a prosecutorial function. He also claimed qualified immunity, on the grounds that there was no established constitutional violation for using a material arrest warrant at the time of the arrest. Al-Kidd contends that Ashcroft is not entitled to either form of immunity because the arrest had an investigative function and no reasonable official could believe that a material witness warrant would authorize the arrest of a suspect without any intent to use the suspect as a witness. The Ninth Circuit Court of Appeals held that Ashcroft was entitled to neither absolute nor qualified immunity. The Supreme Court reversed, holding that an objectively reasonable arrest and detention of a material witness pursuant to a validly obtained warrant cannot be challenged as unconstitutional on the basis of allegations that the arresting authority had an improper motive.

Sossaman v. Texas, 556 U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 08-1438, filed 04/20/11). States, in accepting federal funding, do not consent to waive their sovereign immunity to private suits for money damages under RLUIPA. Sovereign immunity therefore bars this inmate's suit for damages against the State of Texas.

Connick v. Thompson, 556 U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 09-571, filed 03/29/11). Petitioner the Orleans Parish District Attorney's Office concedes that, in prosecuting respondent Thompson for attempted armed robbery, prosecutors violated Brady v. Maryland , 373 U. S. 83 , by failing to disclose a crime lab report. Because of his robbery conviction, Thompson elected not to testify at his later murder trial and was convicted. A month before his scheduled execution, the lab report was discovered. A reviewing court vacated both convictions, and Thompson was found not guilty in a retrial on the murder charge. He then filed suit against the district attorney's office under 42 U. S. C. §1983, alleging , inter alia , that the Brady violation was caused by the office's deliberate indifference to an obvious need to train prosecutors to avoid such constitutional violations. The district court held that, to prove deliberate indifference, Thompson did not need to show a pattern of similar Brady violations when he could demonstrate that the need for training was obvious. The jury found the district attorney's office liable for failure to train and awarded Thompson damages. The Fifth Circuit affirmed by an equally divided court. The United States Supreme Court reversed, holding that a district attorney's office may not be held liable under §1983 for failure to train its prosecutors based on a single Brady violation. Plaintiffs seeking to impose §1983 liability on local governments must prove that their injury was caused by "action pursuant to official municipal policy," which includes the decisions of a government's lawmakers, the acts of its policymaking officials, and practices so persistent and widespread as to practically have the force of law. Monell v. New York City Dept. of Social Servs. , 436 U. S. 658 . A local government's decision not to train certain employees about their legal duty to avoid violating citizens' rights may rise to the level of an official government policy for §1983 purposes, but the failure to train must amount to "deliberate indifference to the rights of persons with whom the [untrained employees] come into contact." Canton v. Harris, 489 U. S. 378. Failure to train prosecutors in their Brady obligations does not fall within the narrow range of Canton 's hypothesized single-incident liability.

Wayman v. Accor North American, ___ Kan.App.2d ___, ___ P.3d ____ (No. 103456, filed 03/18/11). Wayman, a guest at the Manhattan Motel 6, was seriously injured by Ristor, who was driving drunk. Ristor was the general manager of the Motel 6 and was on call 24 hours a day. Wayman alleged that Accor was vicariously liable for Ristor's act and that Accor negligently hired or retained Ristor. The district court granted Accor summary judgment and the Court of Appeals affirmed. It held that drinking and driving were not within the scope of Ristor's employment. Applying the familiar rule that an employee is acting within the scope of the employment "if the employee is performing services for which the employee has been employed or is doing anything reasonably incidental to the employment. The test is not necessarily whether the specific conduct was expressly authorized or forbidden by the employer, but whether such conduct should have been fairly foreseen from the nature of the employment and the duties relating to it." The Court refused to find that drinking and driving could be fairly foreseen from the nature of Ristor's employment, even though he was on call 24/7 and required to live at the Motel.

Ortiz v. Jordan, 556 U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 09-737, filed 01/24/11). Ortiz sued prison officials after they allegedly failed to protect her from a forseeable risk of sexual assault by a correctional officer. Defendants' motions for summary judgment were denied based on disputed facts, and the matter proceeded to trial. The jury awarded judgement for the plaintiff. On appeal, Defendants claimed that the District Court should have granted their motion for summary judgment based on their qualified immunity defense. The Sixth Circuit agreed and reversed the judgment. The Supreme Court reversed the Sixth Circuit, holding that since the Defendants did not (nor could they) file an interlocutory appeal from the denial of their summary judgment motion, nor did they avail themselves of Rule 50(b), which permits the entry of judgment, postverdict, for the verdict loser if the court finds the evidence legally insufficient to sustain the verdict. Absent such a motion, an appellate court is "powerless" to review the sufficiency of the evidence after trial.

Confrontation Clause

Hardy v. Cross, 565 U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 11-74, filed 12/12/11). To show the unavailability of a sexual assault victim, the prosecutor introduced evidence that police visited the witnesses mother's and father's houses several times at various times of day, spoke to various family and friends, and checked other possible sources of information on her whereabouts (jail, the hospitals, the mourges, the post office, etc). The Supreme Court held there was sufficient evidence of unavailability sufficient to admit cross-examined testimony from the first trial. "[T]he Sixth Amendment does not require the prosecution to exhaust every avenue of inquiry, no matter how unpromising."

State v. Bennington, ___ Kan. ___, ___ P.3d ___ (No. 98656, filed 10/28/11). Bennington raped a 77-year old woman. The victim died prior to his trial. Her testimony came in through her statements to her bank regarding unauthorized use of her debit card and through statements made to a SANE nurse. The Court held the statement her bank was nontestimonial and admissble, but statements to the SANE nurse were testimonial and should not have been admitted. The SANE nurse interview was conducted in concert with a police officer who asked questions, the victim was asked about past events, there was no ongoing public safety or medical emergency, and the statement was given in a formal setting. Thus, the Court held the admission of the SANE nurses' testimony about the statements made in the presence of a law enforcement officer violated Bennington's confrontation rights. However, it found the error harmless because it was merely cumulative of other admissible evidence, except as to two counts of aggravated criminal sodomy, which it reversed.

Bullcoming v. New Mexico, 564 U.S. ___, 131 S. Ct. 2705, 180 L. Ed. 2d 610 (2011) (No. 09-10876, filed 06/23/11). The Confrontation Clause requires the person that prepared a forensic lab report be the one that testifies about it. A supervisor won't do. Following his arrest for Driving While Intoxicated (DWI), Bullcoming's blood was tested at the New Mexico Department of Health in order to determine his blood alcohol content (BAC). At trial, the laboratory's report was admitted into evidence even though the actual analyst who performed the test was not a witness. Instead, another analyst from the Department of Health testified to the laboratory's procedures and the machinery used to conduct the BAC test. On appeal, Bullcoming argues that the information in the report was testimonial and that, because the actual analyst was not a witness subject to cross-examination, his Sixth Amendment right to confrontation was violated. The Supreme Court agreed, and held that the analyst that prepared the report must be the one to testify about its contents, unless that analyst is unavailable at trial, and the accused had an opportunity, pretrial, to cross-examine that particular scientist. In the words of the court, "the analysts who write reports that the prosecution introduces must be made available for confrontation even if they possess 'the scientific acumen of Mme. Curie and the veracity of Mother Teresa.'"

Michigan v. Bryant, 562 U.S.____, 131 S. Ct. 1143, 179 L. Ed. 2d 93 (2011) (No. 09-150, filed 02/28/11). Michigan police dispatched to a gas station parking lot found Anthony Covington mortally wounded. Covington told them that he had been shot by respondent Bryant outside Bryant's house and had then driven himself to the lot. At trial, which occurred before Crawford v. Washington , 541 U. S. 36 , and Davis v. Washington , 547 U. S. 813 , were decided, the officers testified about what Covington said. Bryant was found guilty of, inter alia, second-degree murder. Ultimately, the Michigan Supreme Court reversed his conviction, holding that the Sixth Amendment 's Confrontation Clause, as explained in Crawford and Davis, rendered Covington's statements inadmissible testimonial hearsay. The United States Supreme Court reversed, holding that Covington's identification and description of the shooter and the location of the shooting were not testimonial statements because they had a "primary purpose . . . to enable police assistance to meet an ongoing emergency." Davis, 547 U. S., at 822. Therefore, their admission at Bryant's trial did not violate the Confrontation Clause.

Counsel, Right To

Turner v. Rogers, 556 U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 10-10, filed 06/20/11). By the beginning of 2008, Michael Turner was six thousand dollars behind in his child support payments. A South Carolina family court eventually ordered Turner to appear to explain his failure to make any payments for the past year and a half. Turner alleged his personal and physical problems rendered him unable to pay. The family court imposed civil contempt sanctions as a result of Turner's failure to comply with the earlier court order to pay child support. Turner appealed his twelve-month sentence, arguing that because there was a possibility that he would face imprisonment, the court should have provided him with counsel. The Supreme Court held that Turner's incarceration violated due process because he received neither counsel nor the benefit of alternative procedures like those the Court describes. He did not have clear notice that his ability to pay would constitute the critical question in his civil contempt proceeding. No one provided him with a form (or the equivalent) designed to elicit information about his financial circumstances. And the trial court did not find that he was able to pay his arrearage, but nonetheless found him in civil contempt and ordered him incarcerated.

Crimes and Punishment

State v. Plummer, ___ Kan.App.2d ___, ___ P.3d ____ (No. 101684, filed 4/15/11). Plummer went on a two-hour shoplifting spree in the Hutchinson Target store, and was accosted by store security after leaving the front doors with $300 worth of merchandise. A fistfight ensued. He was convicted of aggravated robbery, but alleged that the jury should have been instructed on theft. Judge Atchison (and two others) agreed.

State v. Harris, ___ Kan.App.2d ___, ___ P.3d ____ (No. 105435, filed 11/11/11). Harris and his live-in girlfriend got in a fight and Harris stomped on her foot with steel-toe boots. Harris was convicted of domestic battery (second offense) and appealed, claiming insufficient evidence to support the conviction. The Court of Appeals agreed the evidence was insufficient because the state never proved the girlfriend was over the age of 18, and reversed Harris' conviction for domestic battery. It remanded with directions that Harris be convicted and sentenced for the lesser included crime of battery. See also State v. Perez-Rivera.

State v. Williams, ___ Kan.App.2d ___, ___ P.3d ____ (No. 102036, filed 07/08/11). Williams, a/k/a "Pressure," picked up a 16-year old girl in Wichita, took her to Dallas, and put her on the street selling her wares. She eventually was taken into custody by Dallas police, and Pressure was charged with and convicted of aggravated trafficking and sentenced to serve 246 months. Williams argued the aggravated trafficking statute was unconstitutionally vague and overbroad because it could prohibit constitutional conduct like dating, flirting, driving a minor to the prom, or other similar conduct by legally married minors. The Court rejected his claims, finding the statute only applies where the offender knows that a child will be used to engage in forced labor, involuntary servitude, or sexual gratification of the offender or another, and"the State has a compelling interest in the well-being of its children and in the exercise of its police powers may enact legislation to protect children from adult predators." It also rejected his arguments that prosecutorial misconduct occurred, and that he should have been convicted of the lesser offense of promoting prositutiton. While noting the statutes overlap, the Court held that State might have successfully prosecuted Williams for aggravated trafficking and/or promoting prostitution, but the applicable elements of the charged offense are not identical to the elements of the lesser offense, promoting prostitution.

DL Suspension

Turner v. Kansas Dept. of Revenue, ___ Kan.App.2d ___, ___ P.3d ____ (No. 105353, filed 11/11/11). Turner was stopped early one morning in February 2009 and blew a 0.151 on a breath test. The officer served him notice of suspension of his driving privileges. Turner requested a hearing, which did not occur until July 31, 2009 and the matter was taken under advisement until April 2010, when the suspension was affirmed. Turner sought court review, claiming the delay prejudiced him. The district court agreed, and modified the suspension, making it retroactive. The district court ruled the matter should have been decided within 30 days, or by August 30, 2009. Consequently, the district court considered Turner's suspension completed as of August 30, 2010. The Court of Appeals reversed, holding that K.S.A. 2010 Supp. 8-259(a) authorizes the district court to either affirm the suspension order or reinstate the petitioner's driving privileges, but not modify the suspension order. It also held that Turner showed no prejudice resulting from the delay, since he continued to enjoy driving privileges throughout the time he was waiting on the administrative decision. However, it agreed that the 9-month delay by the hearing officer was unacceptable, noting the suspension order is a check-box form and the issues for administrative review are limited by K.S.A. 2010 Supp. 8-1020.

Crawford v. Kansas Dept. of Revenue, ___ Kan.App.2d ___, ___ P.3d ____ (No. 104837, filed 09/09/11). Crawford failed a breath test in April 2009 and requested an in-person hearing. Due to "'budgetary constraints,'" the KDR temporarily delayed all in-person driver's license suspension hearings outside the 100-mile radius of Topeka between April and July 2009. Crawford subsequently received a letter from the KDR dated September 11, 2009, setting her in-person administrative hearing for November 12, 2009, in Hays, Kansas. The November 12 hearing was held as scheduled, and the administrative hearing officer (AHO) thereafter affirmed the suspension of Crawford's driving privileges. Crawford claimed the delay violated her statutory right for a hearing "forthwith" under K.S.A. 8-1020(d) and to equal protection. The Court of Appeals disagreed, noting Crawford's driving privileges were extended during the pendency of the hearing.

Allen v. Kansas Dept. of Revenue, ___ Kan. ___, ___ P.3d ___ (No. 102134, filed 08/05/11). A trooper stopped Allen's car for weaving and failing to dim its brights. Seeing the usual indicators, the trooper requested SFSTs and a PBT. Allen failed the PBT with a 0.087 and his license was suspended. On appeal, the district court held that K.S.A. 2007 Supp. 8-1012

was unconstitutional, both as applied in this case and on its face, and ruled that the PBT result could not be used to determine if there were reasonable grounds to request the evidentiary breath test under K.S.A. 2007 Supp. 8-1001. The district court ultimately held that there was not sufficient evidence to provide reasonable grounds for the officer to believe that Allen was operating a vehicle under the influence of alcohol absent the PBT result. The Supreme Court reversed on the issue of reasonable grounds, noting it equates to probable cause, and there was probable cause in this case. Since it reversed on the reasonable grounds question, it did not address the constitutional issue. It rejected Allen's argument that City of Norton v. Wonderly, 38 Kan. App. 2d 797, 172 P.3d 1205 (2007), rev. denied 286 Kan. 1176 (2008) should control. Johnson dissents, reasoning that the court only looked at inculpatory facts and ignored exculpatory ones, which does not square with the totality of the circumstances.

Juenemann v. Kansas Dept. of Revenue, ___ Kan.App.2d ___, ___ P.3d ____ (No. 101329, filed 1/15/10, motion to publish granted 7/19/11). Jeunemann was arrested for DUI and blew a 0.226 on her breath test. Her license was suspended for one year based on the result being over 0.150. She appealed to district court, alleging that because K.S.A. 8-1020 limits the issues on review, the KDOR did not have subject matter jurisdiction to determine her breath test exceeded 0.150. The district court bought it and reversed the suspension. The Court of Appeals reversed, reasoning that since K.S.A. 2007 Supp. 8-1020(h)(2)(G) permitted consideration of a test failure of ".08 or greater," the statute necessarily includes a test result of .15 or greater.

Creten v. Kansas Dept. of Revenue, ___ Kan.App.2d ___, ___ P.3d ____ (No. 102792, filed 06/24/11). Creten blew a 0.191 on a breath test and appealed from the district court's decision to affirm the suspension of her driver's license. She claimed the Tonganoxie Police Department's failure to perform a certified standard run of the Intoxilyzer machine during the calendar week immediately prior to her breath test necessarily established that the Tonganoxie Police Department failed to substantially comply with Kansas Department of Health and Environment (KDHE) procedures, which in turn rendered the results of her blood alcohol concentration (BAC) test unreliable as a matter of law. The Court rejected her contention, holding that legislature intended the phrase "testing procedures" in subsection K.S.A. 8-1020 (h)(2)(F) to be limited to the testing procedures established by the KDHE regarding the administration of a breath test, not the testing procedures established by the KDHE to ensure the continued certification of an Intoxilyzer machine. It held that it was precluded from reaching the merits of the issue presented by Creten on appeal, because it was not a testing procedure and thus did not come within the scope of issues that a court may consider upon judicial review of an administrative suspension of driving privileges.

Delong v. Kansas Dept. of Revenue, ___ Kan.App.2d ___, ___ P.3d ____ (No. 104270, filed 02/25/11). DeLong was arrested for driving under the influence in mid-2007 and blew a bac of 0.247. The Department of Revenue suspended her driving privileges and sent her notice of the prospective suspension on December 3, 2007. Two days later it acknowledged her request for judicial review, and stayed the suspension pending judical review. Mike Holland, Delong's attorney, claimed the prospective suspension violated Delong's due process rights. The Court held the argument was "factually insupportable and legally vacuous," noting it had been rejected in five recent unpublished cases.

Schrader v. Kansas Dept. of Revenue, ___ Kan.App.2d ___, ___ P.3d ____ (No. 103176, filed 01/24/11). An Oberlin officer stopped Schrader late at night for traffic violations. Schrader finally stopped in his driveway, and initially ignored the officer's requests to remain. After being physically stopped, he smelled of alcohol and showed poor balance and coordination. Schrader refused field sobriety tests and a PBT. He was arrested for driving while suspended and transported to the Sheriff's office, where he refused a breath test. Although the officer had reasonable grounds to believe that Schrader was driving while under the influence, the only reason the officer gave for the arrest was driving while suspended. The court held that K.S.A. 8-1001(b)(1) requires an arrest for an alcohol-related driving offense rather than simply requiring an arrest for any offense involving operation of a motor vehicle, and held that Schrader's non-existent driving privileges should not have been suspended for refusing a breath test. The Kansas Supreme court later agreed.

Dogs

State v. Lee, ___ Kan.App.2d ___, ___ P.3d ____ (No. 102004, filed 06/10/11). A Kansas City Kansas ordinance prohibiting the ownership of any "dog which has the appearance and characteristics of being predominantly of the breeds of Staffordshire bull terrier, American pit bull terrier, American Staffordshire terrier, or any combination of any of these breeds," is not too vague to be enforced. Accordingly, when Lee's two predominantly Pit Bulls attacked and killed his 70-year old next door neighbor, he was properly convicted of involuntary manslaughter and sentenced to 48 months in prison.

Drugs

DePierre v. United States, 556 U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 09-1533, filed 06/09/2011). In a dispute involving the proper application of the Anti-Drug Abuse Act of 1986, 21 U.S.C. section 841(b)(1)(A), judgment of the appeals court upholding the conviction of petitioner for distribution of 50 grams or more of cocaine base under sections 841(a)(1) and (b)(1)(A)(iii) is affirmed where cocaine base, as used in section 841(b)(1), means not just crack cocaine, but cocaine in its chemically basic form.

McNeill v. United States, 556 U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 10-5258, filed 06/06/2011). In a dispute involving a state's ex post facto reduction of the maximum sentence for offenses under the Armed Career Criminal Act, 18 U. S. C. section 922(g)(1), judgment of the appeals court upholding petitioner's sentencing enhancement based on petitioner's prior drug trafficking convictions is affirmed because a federal sentencing court must determine whether an offense under State law is a serious drug offense by consulting the maximum term of imprisonment applicable to a defendant's prior state drug offense at the time of the defendant's conviction for that offense.

Due Process

Walters v. Wolf, ___ F.3d ___ (8th Cir. No. 10-3597, filed 11/04/11). The Eighth Circuit Court of Appeals considered the 42 U.S.C. 1983 claim of a man whose handgun was seized during a traffic stop and not returned to him. Walters was stopped for lack of a front license plate on his car. During the stop, the officer became aware that Walters was wanted on an outstanding warrant. Walters was arrested and during the arrest indicated he had a weapon in his car. The officer confiscated a handgun. The gun was legally purchased, properly registered, and Walters had a valid permit to carry it. Walters later made two written demands for return of the gun. He was charged with unlawful possession of a firearm. The charge was later dismissed. Walters made a third written demand for the gun's return. The police chief refused to return the gun on the basis that Walters had an outstanding warrant in another city. That warrant, however, later became inactive. The city also justified the refusal on the basis that police department procedure required a court order for the return of confiscated property. Walters filed suit against the police chief and the city alleging violations of his due process rights and his Second Amendment right to bear arms. The district court granted summary judgment to defendants. Walters appealed. The Eighth Circuit reversed summary judgment on the due process claim, concluding that the city's reliance on its own policy to justify the deprivation of property vitiated the adequacy of the post-deprivation remedy, which would have been a state action in replevin to secure return of the gun. The Eighth Circuit affirmed summary judgment on the Second Amendment claim, concluding that while this provision affords a general right to keep and bear arms, it does not provide a right to keep or bear a specific firearm. See also Lathon v. City of St. Louis, 242

F.3d 841 (8th Cir. 2001).

DUI

State v. Smith, ___ Kan.App.2d ___, ___ P.3d ____ (No. 104839, filed 12/16/11). Failure to comply with Kansas Department of Health and Environment (KDHE) protocol on a breath test is not an appropriate subject for a motion to suppress because it does not involve a denial of constitutional rights. Therefore the state does not have to lay a foundation for the admission of the results of the breath test at the suppression hearing. Failure to comply with the protocol would be an appropriate subject for a motion in limine.

State v. Perkins, ___ Kan.App.2d ___, ___ P.3d ____ (No. 103735, filed 07/15/11). Perkins challenged the sufficiency of the evidence to support his felony DUI conviction. A trooper pulled in behind Perkin's truck and saw the passenger get out and go to the driver's side. The passenger said he was taking over driving for Perkins because Perkins' back was bothering him. Perkins was quite drunk. At trial, Perkins testified that the passenger, his stepson, had been driving the entire time and that the two of them switched places after parking the truck. The jury didn't buy it. In a confusing argument that begs the question, Perkins claims he could not be guilty of attempting to operate because, under the definition of attempt in 21-3301, he quit driving of his own accord and neither "failed" nor was he "prevented or intercepted" before he could and actually did drive. The corollary is that he did operate, so the argument does not even make sense. The Court, Atcheson, J., rejected his attempt to use the definition of attempt in 21-3301, holding the legislature has determined defendants should get no dispensation simply because they can stagger to their vehicles and turn on the ignition but prove too drunk to shift from park to drive. Applying the requirements of K.S.A. 21-3301 to an attempted DUI would undercut the purposes of K.S.A. 2008 Supp. 8-1567. Driving under the influence, like many traffic offenses, falls in the no-bad-intent category, and there is no legislative intent that attempted DUI would require proof of a specific intent to drive while drunk. However, it reversed his conviction for driving while suspended because the state charged under alternative means (canceled, suspended, revoked), but only offered evidence of suspension. There was no dispute that he was suspended, but the court acquitted him nonetheless, "We find that the State failed to present any evidence against Perkins to support a conviction under K.S.A. 2008 Supp. 8-262 on the alternative means of driving with a cancelled or revoked license. Perkins' conviction, therefore, rests on an insufficient factual basis. The conviction is reversed, and we enter a judgment of acquittal." It also reversed the mandatory fine on the DUI sentence because the court failed to consider community service. State v. Copes, 290 Kan. 209, Syl. ¶ 7, 224 P.3d 571 (2010).

City of Overland Park v. Rhodes, 46 Kan.App.2d 57, 257 P.3d 864 (No. 103762, filed 07/08/11), rev. denied ___ Kan. ___ (5/11/12). Overland Park police properly considered and abided by the Deskins factors in operating a checklane which resulted in 601 vehicles stopped, 10 DUI arrests, and an average detention period of 147 seconds. Judge Atcheson dissents, holding the checklane was unconstitutional under the First and Fourth Amendments.

State v. Adame, ___ Kan.App.2d ___, ___ P.3d ____ (No. 103646, filed 06/24/11). Adame was sitting in his disabled vehicle and pushing it along with his foot when he struck another vehicle. He had a suspended driver's license, no insurance and was also charged with a 4th offense DUI. He argued on appeal that the district court failed to consider his financial circumstances before imposing the mandatory minimum fines for DUI 4th and No Insurance and $100 over the minimum for driving while suspended. The Court agreed at to DUI and DWS and remanded for sentencing. It held the court must consider community service as provided in K.S.A. 2008 Supp. 8-1567(j) as an alternative to the DUI fine and, in doing so, must take into account the defendant's financial resources. But as to the mandatory minimum for No Insurance, when a mandatory minimum fine is imposed, the court is not required to take K.S.A. 21-4607(3) into consideration. But here the court imposed the mandatory minimum fine and six months in jail, so it should have considered Adame's financial circumstances.

State v. Edgar, 45 Kan. App. 2d 340, 246 P.3d 1013 (2011) (No. 103028, filed 02/11/11), affirmed in part, reversed in part 02/01/13. Edgar was stopped at a checklane, admitted to drinking and was asked to perform field sobriety tests and a PBT. He was eventually convicted of felony DUI. He claims the PBT result should have been suppressed because he "passed" the field sobriety tests, so the officer had no reasonable suspicion to administer a PBT. He also claims the PBT was not voluntary because the officer told him he did not have a right to refuse. The Court of Appeals rejected these claims, holding that the admission of drinking, an odor of an alcoholic beverage and some clues on field sobriety tests give reasonable suspicion to administer a PBT. "In conducting a DUI investigation, a law enforcement officer is not required to reweigh reasonable suspicion after each field sobriety test. If reasonable suspicion exists at the outset of the investigation, an officer should be allowed to run the usual array of tests, within a reasonable number, to determine if the officer's reasonable suspicion leads to arrest or release of the person detained." It also held that implied consent supplied by K.S.A. 8-1012 was sufficient.

State v. Finch, ___ Kan. ___, ___ P.3d ___ (No. 101136, filed 01/07/11). The district court erred in granting a motion for acquittal based on a margin of error on an intoxilyzer test. Our legislature did not include any language in K.S.A. in 8-1567(a)(2) requiring the prosecution to overcome any margin of error. As an appellate court, "we are not willing to write a margin of error into its otherwise clear statutory language."

Employment & Discipline

Denning v. The Johnson County Sheriff's Civil Service Board, 46 Kan. App. 2d 688, 266 P.3d 557 (2011) (No. 104318, filed 10/21/11). Deputy Michael Mauerer was terminated after lying about how a patrol car windshield was broken. Mauerer and another deputy were returning from Topeka when Mauerer tried to kill a fly with a notebook and cracked the windshield. He initially indicated the windshield was cracked by a rock. A first civil service board reversed the sheriff's decision. Denning appealed. The district court reversed the civil service board and remanded for rehearing. The second civil service board affirmed the sheriff's decision. The Court of Appeals affirmed. Mauerer argued that his reports were merely "incomplete—not untruthful." The Court of Appeals disagreed, stating that leaving out critical facts is a violation of the department's truthfulness policy. It held there was substantial competent evidence to support the board's decision. Leben dissents and would have affirmed the first board.

Employment & Discipline

NAACP v. North Hudson Regional Fire & Rescue, ___ F.3d ___ (3rd Cir. Nos. 10-3965 & 10-3983, filed 12/12/11). A New Jersey fire department's residency requirement for firefighter applicants is invalid because it results in a disparate impact on African-Americans. The residency requirement applied to firefighter candidates, but once hired they can live anywhere, even outside the district. Evidence included data that indicated that 37.4% of protective service positions are held by African-Americans in the tri-county area. Based on this percentage, "one would expect 121 North Hudson firefighters to be African-American," yet the department employs only two. "In light of the ample evidence of record…the district court did not err in concluding that no genuine dispute of material fact exists as to whether North Hudson's residency requirement creates a disparate impact on African-American firefighter applicants" The court rejected the fire department's argument that business necessity justifies its residency requirement. "We have no quarrel with the notion that a critical aspect of firefighting is the ability to respond quickly and that familiarity with the streets and buildings of a locale is important to achieving that goal," said the court. "But this valid point cannot be reconciled with the fact that North Hudson does not require its firefighters to reside in the North Hudson municipalities after they are hired." See also Ricci vs. DeStefano, in which the nation's high court ruled in favor of 17 white and one Hispanic firefighter who were passed over for promotions.

Evidence

Conceal City, L.L.C. v. Looper Law Enforcement, LLC, 2011 WL 5557421 (N.D.Tex. 2011). A Northern District of Texas Federal Court finds that a printout of a screen shot satisfies the best evidence rule in FRE 1002. The parties' dispute involved a holster covered by a U.S. Patent. The patent intends to improve upon the inside-the-pants pistol holster. It does so by using stiff leather for the inner and outer layers and extending the layers forwardly and rearwardly to form wings. The wings maximize the flatness of the holster and thereby minimize the bulge of the pistol. The patented holster also permits the user to wear a pager or pager-like device to cover the clip connecting the holster and waistband. From the exterior, only the pager or pager-like device is visible. The intended result of these two improvements is to better conceal the pistol. Before trial, Conceal City sought a preliminary injunction enjoining defendants from using the production dies; manufacturing, distributing, or selling an infringing holster; and engaging in misleading advertising, such as marking the Hyde–It Holster as related to the patent and advertising that the Wiesners' company is the home of the "Cell/PDA Pal." As support for its claim that the Wiesners committed patent infringement, Conceal City offered in evidence a screen shot of the Wiesners' website, universalholsters.com, which twice states that the Hyde–It Holster is "patented" and refers to "US Patent # 5570827" at the bottom of the page. Conceal City objected that the admission of the printout of the screen shot violated the Best Evidence Rule, but the Northern District of Texas disagreed, concluding that the printout was an "original" for Best Evidence purposes under Federal Rule of Evidence 1001(3), which states in relevant part that If data are stored in a computer or similar device, any printout or other output readable by sight, shown to reflect the data accurately, is an "original."

State v. Horton, ___ Kan. ___, ___ P.3d ___ (No. 101054, filed 07/15/11). The district court erred in determining it had no authority to allow the defense to submit additional evidence after the jury began deliberations. Horton was convicted of murder, but his conviction was reversed on appeal, State v. Horton, 283 Kan. 44, 151 P.3d 9 (2007). He was retried, and the state offered additional evidence from two inmates who testified that Horton had told them that he had killed a girl under circumstances conforming to the State's theory. During deliberations, Horton's counsel moved to suspend deliberations for 2 days in order to give the defense time to translate and analyze a recorded telephone call between one of the inmates and the inmate's mother. Judge Davis denied the motion. The Supreme Court reversed, holding the trial judge had discretion to do so.

State v. Chavez-Aguilar, ___ Kan.App.2d ___, ___ P.3d ____ (No. 102910, filed 04/22/11). Defendant and his brother became involved in a fight at a Wichita bar. After being escorted to their truck, the brother intentionally drove the truck through the gathered crowd, striking three people, killing two and seriously injuring one. As the truck passed through, and while one victim was being hit, the passenger—who was identified as Chavez—leaned out the truck window and screamed, "[T]his is what you mother fuckers get, this is Sureno town." Defendant claimed that gang evidence was improperly admitted at trial. The Court of Appeals gave his argument short shrift, saying that gang affiliation was directly related to the crimes charged and was an essential part of the events surrounding the commission of the crimes. Gang affiliations of the combatants explained why the fight began, and it thus forms a part of the events surrounding thecrimes. Also, this evidence demonstrated a motive for Chavez and his brother to drive through a crowd of people while screaming out their gang affiliation, which offers an explanation for an otherwise inexplicable act.. The court concluded the discussion by saying, "This entire crime scene reeks of gang activity."

Skinner v. Switzer, 556 U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 09-9000, filed 03/07/11). A convicted state prisoner seeking DNA testing of crime-scene evidence can assert that claim in a civil rights action under 42 U. S. C. §1983. The Court granted review to decide a question presented, but left unresolved, in District Attorney’s Office for Third Judicial Dist. v. Osborne , 557 U. S. ___, ___ (2009). Skinner was alleged to have killed his live-in girlfriend and her sons. A large quantity of DNA evidence was collected at the scene but never tested. Shortly after his conviction and death sentence, Skinner requested testing which was denied. He sued the district attorney, claiming the denials infringed his constitutionally protected rights under the Fourteenth Amendment. The Fifth Circuit granted defendant's motion to dismiss for failure to state a claim, holding that the only remedy was a petition for writ of habeas corpus. The United States Supreme Court reversed. Distinguishing Heck v. Humphrey, 512 U. S. 477 (1994), the Court held that success in his suit for DNA testing would not "necessarily imply" the invalidity of his conviction.

United States v. Yeley-Davis, ___ F.3d ___ (10th Cir. No. 10-8000, filed 01/20/2011). Admission of certified Verizon cell phone records to establish defendant's conspiracy to distribute drugs did not violate her rights under the Confrontation clause, and it was not error to allow a law enforcement officer to testify about how cell phones work.

Firearms

Sykes v. United States, 556 U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 09-11311, filed 06/09/2011). In a dispute involving whether a felony vehicle flight falls within the ambit of the Armed Career Criminal Act (ACCA), 18 U.S.C. section 924(e), judgment of the appeals court is affirmed where a felony vehicle flight, as proscribed by Indiana law, is a violent felony for purposes of ACCA.

First Amendment

R.J. Reynolds v. United States Food and Drug Administration, ___ F.Supp.2d ___ (USDC, DC No. 11-1482(RJL) filed 11/7/11). A DC federal judge issued a preliminary injunction blocking enforcement of new rules by the Food and Drug Administration that require cigarette manufacturers to display graphic warning labels on every pack of cigarettes sold. The judge found that the requirement violated cigarette manufacturers' rights under the First Amendment since it forced them to engage in commercial speech that goes beyond the conveyance of purely factual or uncontroversial information.

Brown v. Entertainment Merchants Association, 556 U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 08-1448, filed 06/27/11). The Supreme Court struck down a California law that restricted the sale of violent video games to minors, noting that parents, not government should restrict which games children buy. Justice Scalia wrote that there was no culture in the United States of restricting children's access to depictions of violence. On the contrary, Scalia said society has enabled children's access to violence for years. "Grimm's Fairy Tales, for example, are grim indeed. .... Hansel and Gretel (children!) kill their captor by baking her in an oven."

United States v. Bagdasarian, ___ F.3d ___ (9th Cir. No. 09-50529, filed 07/19/11). Racist and violent statements made by Bagdasarian against the then-candidate Barack Obama resulted in his prosecution and conviction for violating 18 U.S.C. § 879(a)(3), which makes it a felony to threaten to kill or do bodily harm to a major presidential candidate. A month prior to the 2008 presidential election, Walter Bagdasarian anonymously posted the following statements on a message board:

 

"Obama f- the n- he will have a 50 cal in the head soon," and

"shoot the n-."


The 9th Circuit reversed, holding the statements were protected by the First Amendment. As the court points out, this statute can only punish speech that is not protected by the First Amendment. A true threat is one backed by sufficient evidence demonstrating that a reasonable person would believe the speaker to intend harm, and that the speaker intended his statement to be understood as such. The 9th Circuit concluded that that the above statements do not indicate that Walter Bagdasarian intended to shoot Obama.. Instead, it found that the first statement merely predicts that President Obama "will have a 50 cal in the head soon," while the second encourages others to behave violently.

Borough of Duryea v. Guarnieri, 556 U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 09-1476, filed 06/20/11). In 2003, the Borough of Duryea, Pennsylvania fired its police chief, Charles J. Guarnieri, Jr. Guarnieri filed a grievance leading to arbitration and his reinstatement. When Guarnieri returned to his position, Duryea issued him a number of directives limiting the tasks he could and could not do on the job. Guarnieri filed a second grievance, leading to modification of the directives. Subsequently, Guarnieri sued Duryea in District Court alleging that Duryea issued the directives in retaliation for his filing of the 2003 grievance, violating his First Amendment right to petition. After a jury found for Guarnieri in District Court, Duryea appealed to the Third Circuit. The Third Circuit held that the First Amendment protects public employees in filing grievances concerning any matter, even those of a personal nature. The Supreme Court reversed, holding that the public concern test developed in Speech Clause cases also applies to Petition Clause claims by public employees.

Snyder v. Phelps, 562 U.S. ___, 131 S.Ct. 1207, 179 L.Ed.2d 172 (No. 09-751, filed 03/02/11). Westboro Baptist's picketing signs which stated, e.g., "Thank God for Dead Soldiers," "Fags Doom Nations," "America is Doomed," "Priests Rape Boys," and "You’re Going to Hell"— displayed at a military member's funeral were protected by the First Amendment. Therefore, a jury verdict against Westboro in the amount of $2.9 million in compensatory damages and $8 million in punitive damages cannot stand. Chief Justice Roberts observed, "Westboro believes that America is morally flawed; many Americans might feel the same about Westboro."

FLSA

Salazar v. Butterball, LLC, ___ F.3d ___ (10th Cir. No. 10-1154, filed July 5, 2011). Employees at a turkey processing plant filed a collective action against Butterball alleging that its failure to compensate them for time spent donning and doffing personal protective equipment (PPE) violated, among other things, the Fair Labor Standards Act (FLSA). Neither Butterball nor the former owner of the plant ever paid employees for donning and doffing time. Plaintiffs argued that Butterball's failure to compensate them for donning and doffing time violated the FLSA. The district court disagreed and granted summary judgment for the employer. The Circuit focused on 29 U.S.C. § 203(o), part of the FLSA, which states that "hours worked" excludes "any time spent in changing clothes or washing at the beginning or end of each workday which was excluded from measured working time during the week involved by the express terms of or by custom or practice under a bona fide collective-bargaining agreement applicable to the particular employee." The Tenth Circuit reasoned that "changing clothes" was ambiguous and interpretation of this phrase was a question of first impression in this circuit. The court concluded that "clothes" encompassed all of the PPE at issue. Further, there was a custom or practice at the plant of not paying employees for time spent donning and doffing the PPE. Thus, the plaintiffs' claims that they should be compensated for this time as "hours worked" under the terms of the FLSA failed.

Kasten v. Saint-Gobain Performance Plastics Corporation, 556 U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 09-834, filed 03/22/11). Oral complaints trigger the anti-retaliation protections of the FLSA. Kasten says that Saint-Gobain located its timeclocks between the area where Kasten and other workers put on (and take off) their work-related protective gear and the area where they carry out their assigned tasks. That location prevented workers from receiving credit for the time they spent putting on and taking off their work clothes—contrary to the Act’s requirements. In a related suit the District Court agreed with Kasten, finding that Saint-Gobain’s "practice of not compensating … for time spent donning and doffing certain required protective gear and walking to work areas" violated the Act. Saint-Gobain denied that Kasten made any significant complaint about the timeclock location. And it says that it dismissed Kasten simply because Kasten, after being repeatedly warned, failed to record his comings and goings on the timeclock. Accepting Kasten's well-pleaded facts as true, the court concluded that "filed" as used in 29 U. S. C. §215(a)(3) includes oral complaints, which triggers FLSA anti-retaliation protection.

Forfeiture

State v. Black 1999 Lexus, ___ Kan.App.2d ___, ___ P.3d ____ (No. 102286, filed 01/07/11). The Johnson County District Attorney's office sought forfeiture of a drug dealer's $8000 car after he made two sales worth $250 from the car. There was also other evidence of drug dealing resulting from warrant service at the dealer's home. The forfeiture of Wurtz' Lexus was not grossly disproportionate to his conduct, and K.S.A. 60-4106 is not unconstitutionally vague.

Gambling Devices.

Dissmeyer v. State, ___ Kan. ___, ___ P.3d ___ (No. 102786, filed 04/08/11). Legislature's prohibition of "gray machines," was overbroad. The act defined such machines as "mechanical, electro-mechanical or electronic device, capable of being used for gambling, that is: (1) Not authorized by the Kansas lottery, (2) not linked to a lottery central computer system, (3) available to the public for play or (4) capable of simulating a game played on an electronic gaming machine or any similar gambling game authorized pursuant to the Kansas expanded lottery act." The Court found that a law that makes it unlawful to possess almost any kind of tool or machine and that allows the State to confiscate almost any personal property, regardless of its actual use, is overbroad and unconstitutional. It held that K.S.A. 2010 Supp. 74-8702(g), defining gray machines, in combination with its enforcement provisions, K.S.A. 2010 Supp. 74-8750(d) and K.S.A. 2010 Supp. 74-8761, are unconstitutional as they relate to gray machines.

Identification

State v. Reed, ___ Kan.App.2d ___, ___ P.3d ____ (No. 102390, filed 02/18//11). A robbery victim called police, who encountered a suspect shortly after the robbery. They drove the suspect to where the victim was, and showed him to the victim while the suspect was in the back seat of a police car in handcuffs. The victim identified the suspect. Reed complains the one-person show up was overly suggestive under the circumstances and should have been suppressed. The Court of Appeals disagreed. It noted that show-up identifications are not favored absent exigent circumstances because they are suggestive, and in fact found this one unnecessarily suggestive, but found that based on the lack of time passing between the robbery and the identification, the procedure used in this case was not impermissibly suggestive.

Interrogation

State v. Whitt, ___ Kan.App.2d ___, ___ P.3d ____ (No. 105689, filed 09/23/11). Olathe detective Matt Campbell conducted a text-book Reid-technique 2-hour noncustodial interrogation of a suspect in an indecent liberties case the police station. The officer told the suspect he was not under arrest, was free to go at any time, and would be and was released at the end of the interview. Judge Bornholdt held that the interrogation was custodial because the interview room only had one exit, and during the interrogation phase the detective only gave the suspect two choices - admit he was a child molester or admit that things got out of hand and he inappropriately touched his 10-year old great niece. The Court of Appeal reversed, finding the interrogation non-custodial.

State v. Johnson,___ Kan.App.2d ___, ___ P.3d ____ (No. 103786 filed 09/02/11). (Summary by Colin Wood). Lyndol Johnson was stopped for having a small child on his lap while driving. His driver's license was suspended, had no proof of insurance, and he smelled of alcohol. During the encounter, Lyndol was arrested for the suspended license and the insurance violation. During the arrest, and before conducting a patdown or giving Miranda, the officer asked Lyndol two questions, probably all in one general phrase 1) [whether Lyndol] had any weapons, sharp objects, or anything that would stick me there;" and 2) [whether Lyndol] had anything on his person that [the officer] should know about." In response to the questions, Lyndol told the officer that he had marijuana in his pocket. When Lyndol lost his trial court suppression hearing and was convicted, he appealed on numerous grounds, but what is important here is the pre-Miranda issue. It was Lyndol's argument that Lyndol was in arrest custody, was not provided with the Miranda warning, and was asked a question(s) that the officer should have known would result in a self-incriminating response and in violation of the 5th Amendment.

Though the introduction at trial of the marijuana ultimately was OK'd on different grounds, it is important here to alert you to the following: the Kansas Court of Appeals panel held that part of the officer's pre-Miranda questioning was wrong. There are two prerequisites to the applicability of Miranda: arrest custody AND interrogation. A person is in custody for Miranda purposes when the person is formally taken into custody (like Lyndol) or is deprived of his or her freedom of action in a significant way. A person is interrogated for Miranda purposes when law enforcement officer use words or actions that they should reasonably know are likely to elicit an incriminating response. However, a narrow "public safety" exception exists to the rule that Miranda warnings must be given prior to custodial interrogation: when it is objectively reasonable for the officer to believe the [pre-Miranda] questioning is necessary to protect the officer or the public from immediate danger. With that exception in mind, the appellate panel discussed the officer's two questions: #1 (…anything going to stick me…) was fine. An officer has an immediate need to protect himself or herself from weapons or sharp objects, and an officer may pose this type of narrow question to a suspect prior to giving Miranda. BUT, a question like #2 (…had anything on his person that should know about) is wrong and not "narrowly tailored to fit the public safety exception" to Miranda. So, we have all done it, but we are now on notice that with persons who are in arrest custody and have not received the Miranda warning, we should not ask open-ended questions like, "do you have anything on you (or in the car) that I should know about"? We should focus pre-Miranda questions only on immediate dangers to you and others.

Juveniles

J.D.B. v. North Carolina, 556 U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 09-11121, filed 06/16/11). Petitioner J.D.B. was a thirteen-year-old boy suspected of being involved in two break-ins. The police questioned him while he was at school without giving him a Miranda warning, and J.D.B. made incriminating statements. The questioning occurred in a school conference room with two police officers and two school administrators present, and lasted about 30 to 45 minutes. At his trial, J.D.B. moved to suppress those statements, arguing that he had been subjected to custodial interrogation under Miranda v. Arizona. Specifically, J.D.B. argued that a court should take account of his age when determining whether he was in custody. The North Carolina trial court and appellate courts all held that J.D.B. was not in custody for purposes of Miranda and allowed the statements into evidence. J.D.B. was convicted, placed on 12 months' probation, and ordered to pay restitution. J.D.B. appealed to the Supreme Court, arguing that age should be a factor in determining whether he was in custody for Miranda purposes. North Carolina contended that age is a subjective factor and should not be part of the objective custody inquiry. The Supreme Court disagreed, reasoning that it is beyond dispute that children will often feel bound to submit to police questioning when an adult in the same circumstances would feel free to leave. Seeing no reason for police officers or courts to blind themselves to that commonsense reality, the court held that a child’s age properly informs the Miranda custody analysis.

Memorable Quotes

Klen v. City of Loveland, Colorado, ___ F.3d ___ (10th Cir., No. 10-1311, filed 11/15/11). "[T]he due process clause is not a guarantee against incorrect or ill-advised government decisions." Camuglia v. City of Albuquerque, 448 F.3d 1214, 1222 (10th Cir. 2006) (internal quotation omitted). An arbitrary deprivation of a property right may violate the substantive component of the Due Process Clause if the arbitrariness is extreme. See id.

Hill v. Kansas Department of Labor, ___ Kan. ___, ___ P.3d ___ (No. 99726, filed 04/01/11), Rosen, J. "At oral argument, OT Cab cited to the final chapter of Mick Jagger and Keith Richards' learned treatise "Let It Bleed" for legal authority on the first issue, saying: "You don't always get what you want, but you shouldn't get what you don't ask for." This court responds with an accurate quotation of the Rolling Stones classic, which perhaps better summarizes these and many litigants' posture before this court: "You can't always get what you want / But if you try sometimes you just might find / You get what you need.""

Miscellanous

Martin v. Kansas Parole Board, ___ Kan. ___, ___ P.3d ___ (No. 103371, filed 06/10/11). On February 13, 2008, when Louie R. Martin was released on postrelease supervision, he was given an expiration of postrelease supervision date of June 29, 2009. Shortly after his release, the Kansas Legislature passed an amendment to K.S.A. 21-4608, which impacted Martin's previously imposed postrelease expiration date by extending it nearly 11 years. Martin challenged the extension and won. The Supreme Court held that because the 2008 amendment to K.S.A. 21-4608(e)(2) is an impermissible ex post facto law as applied to Martin, Martin's original postrelease supervision expiration date of June 26, 2009, is effective.

Obstruction

State v. Everest, 45 Kan. App. 2d 923, 256 P.3d 890 (No. 102720, filed 05/13/11, rev. denied ___ Kan. ___ (01/20/12)). Lying to a police officer about your identity on a 5th offense DUI stop does not constitute obstruction if the officer soon discovers the suspect's true identity. The offender's actions must substantially hinder the officer's investigation, and in this case, they did not. Judge McAnany reversed a conviction tried before Judge Tatum, holding the evidence of obstruction was insufficient based on the holding in State v. Parker, 236 Kan. 353, 364-65, 690 P.2d 1353 (1984).

Privacy

Sorrell v. IMS Health, Inc., 556 U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 10-779, filed 06/23/11).In 2007, Vermont passed Act 80, which prohibits prescription drug companies from obtaining patients' personal information for marketing purposes without the prescribing physician's consent. The pharmaceutical companies sued the state of Vermont, seeking an injunction prohibiting the enforcement of Act 80 on the grounds that it was an unconstitutional restriction on their right to commercial speech. Vermont argues that Act 80 does not regulate speech protected by the First Amendment, and that the law is related to Vermont's interests of protecting medical privacy, controlling health care costs, and protecting public health. The Court held that Vermont’s justifications for §4631(d) do not withstand heightened scrutiny.

FCC v. AT&T INC., 556 U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 09-1279, filed 03/01/11). The Freedom of Information Act requires federal agencies to make records and documents publicly available upon request, subject to several statutory exemptions. One of those exemptions, Exemption 7(C), covers law enforcement records the disclosure of which "could reasonably be expected to constitute an unwarranted invasion of personal privacy." 5 U. S. C. §552(b)(7)(C). CompTel, a trade association, submitted a FOIA request for documents AT&T had provided to the Federal Communications Commission Enforcement Bureau during an investigation of that company. The Bureau found that Exemption 7(C) applied to individuals identified in AT&T's submissions but not to the company itself, concluding that corporations do not have "personal privacy" interests as required by the exemption. The FCC agreed with the Bureau, but the Court of Appeals for the Third Circuit did not. It held that Exemption 7(C) extends to the "personal privacy" of corporations, reasoning that "personal" is the adjective form of the term "person," which Congress has defined, as applicable here, to include corporations, §551(2). The United States Supreme Court reversed, holding that corporations do not have "personal privacy" for the purposes of Exemption 7(C).

NASA v. Nelson, 556 U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 09-530, filed 01/19/11). Twenty-eight federal contractors working at the Jet Propulsion Laboratory at the California Institute of Technology sued the National Aeronautics and Space Administration, alleging that NASA's requirement that employees undergo a background investigation violated their right to informational privacy. The contractors specifically alleged that the information sought was overly broad and unrelated to their abilities as employees. The government claimed that the information requested was relevant to the government's security concerns and that safeguards helped ensure that the information collected was not susceptible to public disclosure. The Ninth Circuit issued a preliminary injunction, finding that the government's inquiries were not sufficiently tailored to a legitimate government interest. The Supreme Court reversed, holding the interest of the government, as an employer, in preventing security risks was reasonable, versus the interest of individuals in protecting personal information.

Restitution

State v. Hall, 45 Kan. App. 2d 290, 247 P.3d 1050 (2011), affirmed ___ Kan. ___, ___ P.3d ___ (No. filed //13). (No. 102297, filed 06/28/13). Hall stole from a veterinary clinic where she worked. She was convicted of theft and computer crime. Johnson County Judge Davis initially ordered Hall to pay about $10,000 in restitution. Defense counsel argued the amount was too much, and indicated he may challenge the amount at a later hearing. Judge Davis told him that any challenge should be filed within 30 days. After defendant filed her challenge, the judge ordered restitution of about $15,000. Hall contended the trial court did not have jurisdiction to increase the amount, and argued that retail value of the items stolen was an improper measure of the restitution amount since the clinic bought the items at wholesale prices. The Court of Appeals held that jurisdiction was properly reserved on the restitution amount, but agreed with Hall on the retail v. wholesale amounts. It said the assumed lost profit should not be included in the fair market value to be awarded as restitution. The Supreme Court focused on whether retail cost or wholesale cost is the appropriate measure of loss for determining restitution for stolen inventory, and concluded the answer should be: "It depends." It rejected a bright - line rule favoring either retail or wholesale cost and said the sentencing judge must evaluate the evidence, weigh all factors, and consider the facts and circumstances of each case to determine a value that will compensate the victim for the actual loss caused by the defendant's crime. It remanded for reconsideration of the restitution award.

Search and Seizure

United States v. Powell, 2011 U.S. App. Lexis 22795 (4th Cir. 2011). Drug and gun evidence should have been excluded due to a lack of reasonable suspicioun for the stop and reasonable grounds for a pat-down. The officers knew Powell had prior arrests for armed robbery and Powell gave the officers false information about his driver's license, but that did not amount to reasonable grounds for the pat-down. See also United States v. Foster, 634 F.3d 243 (4th Cir. 2011); United States v. Massenburg, 654 F.3d 480 (4th Cir. 2011); United States v. DiGiovanni, 650 F.3d 498 (4th Cir. 2011). An officer must do something more than label actions "suspicious" to make it so. They must articulate why a behavior is suspicious or logically demonstrate the behavior is likely to be indicative of some more sinister activity than may appear at first glance. Foster, 634 F.3d at 246, 248.

United States v. Goode, 2011 U.S. Dist. LEXIS 144899 (E.D. Pa.). "The defense argues that Trooper Lora's friendly and respectful demeanor was so much so as to be actually and literally disarming and, hence, violative of Mr. Goode's exercise of his free will. The Court declines to entertain an argument (or cynicism, generally) that would lead to a finding that politeness and good humor on the part of law enforcement officers can be subject to such alchemy as to unconstitutionally eviscerate the will power and intelligence of a fully functional adult. It is difficult to imagine the precise admonition that would have to be given to police officers to explain that they should beware of being "too nice" lest the exclusionary rule be invoked. Such a situation would set on its head the truism that more flies are caught with honey than with vinegar."

State v. Oram, ___ Kan.App.2d ___, ___ P.3d ____ (No. 104163, filed 12/02/11). Wyandotte County deputies stopped a car on October 2, 2008. They arrested the driver for obstruction and the passenger for a warrant and secured them both in handcuffs in the back seat of a police car. They searched the car incident to arrest and found marijuana. Oram confessed it was hers. Oram appealed from her conviction alleging the search violated United States v. Gant, and that the good faith exception should not have applied. The Court of Appeals agreed. "[W]e conclude that well-trained deputies in Kansas would not have believed in good faith that they had the authority to search a car after the defendant had been handcuffed, searched, and placed in the back seat of a patrol car on October 2, 2008. As stated earlier, for many years in Kansas K.S.A. 22-2501 has limited the physical scope of a search incident to arrest to the arrestee's immediate presence. Deputies are presumed to know the law of the jurisdiction that they are enforcing. Therefore, a failure to understand the law by the very person charged with enforcing it is not objectively reasonable under the Fourth Amendment. Unlike Daniel, where our Supreme Court found that when the police searched Daniel's car and purse that a reasonable officer would not have known that K.S.A. 22-2501(c) was unconstitutional, the deputies in this case had knowledge or, at the very least, they should have been aware that their search of Oram's car was in violation of the statutory limits of K.S.A. 22-2501." It went on to state, "Leon's good-faith exception to the exclusionary rule applies only narrowly outside the context of a warrant. "It has not been applied when the mistake resulting in the Fourth Amendment violation is that of the officer conducting the seizure and search, rather than a neutral third party not engaged in the 'competitive endeavor of ferreting out crime.'" Herrera, 444 F.3d at 1251 (quoting Leon, 468 U.S. at 914). It also found insufficient evidence that this was an inventory search, and affirmed suppression of the confession due to insufficient evidence of attentuation.

State v. Stevenson, 46 Kan. App. 2d 474, 262 P.3d 689 (No. 104115, filed 09/16/11), reversed, see State v. Stevenson, above.. Sedgwick County officers stopped a vehicle driven by Stevenson for failing to signal the intent to turn within the appropriate distance. Stevenson was the sole occupant. Officers noted an "extremely strong odor" of alcohol coming from the vehicle. The got Stevenson out for FSTs, and testified that a very strong odor of alcohol remained in the vehicle once Stevenson stepped out. The officers determined that Stevenson was not under the influence of alcohol and then searched the vehicle based on the odor. Officers found a large bottle of wine in the backseat of the vehicle that had leaked a large quantity of red wine onto the floorboard behind the driver's seat. They also found two pipes with methamphetamine residue and digital scales in the center console. Stevenson challenged the search, claiming odor alone did not establish probable cause. The Court of Appeals disagreed. Once Stephenson was removed from the car and it was determined that he was not intoxicated, the clear source of the "very strong" odor of alcohol was the interior of the car. In fact, it was so strong the officers immediately associated the odor with an open container that had spilled in the vehicle, certainly a fair inference. If the alcohol was being transported legally in an unopened container, it would not have a detectable odor. It was reasonable for the officers to act on their suspicions, rather than ignore evidence which signals a crime. Finally, Gant did not abrogate the automobile exception. Buser dissents, and would hold there was no probable cause since no Kansas appellate court previously has held the odor of a legal substance may provide the sole basis to justify a warrantless search of an automobile based upon probable cause to believe the vehicle contained contraband or evidence of a crime.

United States v. Burleson, ___ F.3d ___ (10th Cir. No. 10-2060, 2011 U.S. App. LEXIS 18820 (10th Cir. 09/12/11). A Roswell, New Mexico police officer saw three persons exit an alley and begin walking in the middle of the street side by side. One of the persons was carrying a Pit Bull without a leash. The officer stopped them because of recent crime reports in the neighborhood, walking in the street violated a state law and local ordinance and the officer thought it strange that one of the persons was carrying a dog, and he thought it might be stolen. The officer asked the group to "hold up." They did. The officer asked them about what they were doing and about the dog, after which he asked for their names. He then ran warrant checks and one of the persons had a warrant. The time of the stop up to this point was about three to five minutes. He verified that the person he stopped was the one named in the warrant, and told him he was under arrest. Burleson then told the officer, "Just so you know, I do have guns on me." The officer handcuffed Burleson and found two handguns and ammunition in Mr. Burleson's pants pocket and waistband. Burleson, a convicted felon, challenged the stop claiming it was not based on reasonable suspicion. The Circuit disagreed. The court held that the same rationale that allows warrant checks in traffic stops applies with equal force in the pedestrian context.

United States v. Martinez, 643 F.3d 1292 (10th Cir. 2011). (Summary by Ken Wallentine).

Static-only 911 call did not justify exigent circumstances entry to home

          A 911 dispatcher received a call from Martinez's home. The dispatcher could hear only static and got the same result upon dialing the number back. The dispatcher sent officers to investigate. One of the responding officers knew that telephone line problems or bad weather caused glitches that result in static calls. The responding officers knocked several times on the door. When no one responded, the officers looked through windows. They looked through a sliding glass door and saw a room that had electronics boxes and equipment strewn about. The officers entered through the unlocked door to check for persons inside who might need help. They found no one home, but found drugs and child pornography in open view. After the officers checked the house, Martinez arrived. The officers arrested him and obtained a search warrant for the home.

          Martinez asked the court to suppress the evidence found, claiming that there were not exigent circumstances to justify the officers' warrantless entry into his home. The prosecution argues that several factors justified the entry: (1) the static-only 911 call from the residence; (2) the "disheveled" appearance of the house; (3) the unlocked door on the backside second floor of the house; and (4) the electronics boxes just inside the unlocked door. In Brigham City v.

Stuart, 547 U.S. 398 (2006), the Supreme Court held, "officers may enter a home without a warrant to render emergency assistance to an injured occupant or to protect an occupant from imminent injury." The Tenth Circuit previously upheld an entry into a home based on a 911 hang-up call in United States v. Najar, 451 F.3d 710 (10th Cir. 2006) (discussed in 2006 Xiphos archives).

          The court distinguished this case from United States v. Najar, explaining that 911 hang-ups inform the police that someone physically dialed 9-1-1 and either hung up or was disconnected. An unanswered return call gives further information pointing to a probability that after the initial call was placed the caller or the phone has somehow been incapacitated. A static call, particularly where emergency operators and officers are aware of weather and technical glitches that can sometimes cause such calls, does not raise the same suggestion that someone has called and is unable to answer the return call. Thus, the court held that a static-only call does not justify warrantless entry by police with no substantiating evidence of danger, injury, or foul play.

United States v. Hernandez, ___ F.3d ___, 2011 WL 2750914 (5th Cir. 2011). (Summary by Ken Wallentine).

GPS tracker and monitoring did not require a warrant

          Officers were investigating Angel Hernandez for suspected drug trafficking. They knew that he drove a Chevrolet pickup truck when dealing drugs. Though his girlfriend drove the truck occasionally, Angel Hernandez was the primary driver. An officer saw the truck parked on a public street in front of Hernandez's residence. The officer crawled under the truck and attached a GPS tracker. The officer did not have a warrant to attach or use the device. The GPS tracker was accurate to 50 yards, but could not relay a precise address nor transmit a signal from an enclosed area like a garage.

          The officers learned that Angel Hernandez's brother, Jose Hernandez, was supposed to drive the truck from Texas to southern California to pick up a large load of methamphetamine. They used the tracker to follow the truck to the pick-up point. Other officers then watched Jose Hernandez load several packages into the truck. They stopped him for a traffic violation and obtained consent to search the truck. The search revealed 20 pounds of methamphetamine. Jose Hernandez claimed that both the placement and the use of the GPS tracker violated the Fourth Amendment, requiring suppression of the drugs.

          The U.S. Court of Appeals for the Fifth Circuit rejected this claim, siding with the majority of courts to hold that the use of a tracker to follow a suspect on open roads does not violate the Fourth Amendment and does not require a warrant. The court also rejected a claim that placement of the tracker was improper because the truck was parked on the street near Hernandez's house. Hernandez claimed that the truck was within the curtilage of the home. The court stated that a car parked on a public street is never within the home's curtilage.

          Another federal court of appeals struck down evidence obtained by continuous, month-long tracker monitoring, creating a division of authority in federal courts. See prior issues of Xiphos for discussion of United States v. Maynard, 615 F.3d 544 (D.C. Cir. 2010). The United States Supreme Court will consider the issue in the fall term in the case of United States v. Jones, No. 10-1259 (U.S. June 27, 2011). For now, the strong majority of courts hold that there is no expectation of privacy barring attachment of a GPS tracker to the underside of a vehicle located in a public place and no expectation of privacy in the movements of the monitored vehicle as it travels in open areas and public roads.

State v. Coleman, ___ Kan. ___, ___ P.3d ___ (No. 101621, filed 08/12/11). A Reno County Deputy stopped a car between Hutchinson and Wichita 12:30 a.m. for speeding. The rental agreement had expired two days previous, but the driver claimed he had renewed it over the phone. Five minutes into the stop, the deputy discovered the driver was on parole, and was informed that police had "specific knowledge" that the driver was moving cocaine between Wichita and Hutchinson. A KDOC parole officer requested that the driver be detained for a search. The parole officer arrived 35 minutes to an hour later, put the driver in handcuffs, and found $1,035 in cash on the driver and cocaine and cocaine sales paraphernalia in the vehicle. The district court denied suppression, holding the search was based on reasonable suspicion. The Supreme Court agreed, saying the expired rental agreement, in combination with Coleman's parolee status and the reports that it was likely that Coleman was engaged in drug transportation, provided the deputy with reasonable suspicion of criminal activity, justifying a temporary detention and allowing further investigation. However, it found the duration of the detention was too long. The deputy did not have the statutory authority to arrest the driver as a parole violator, and had no grounds to arrest him for any other reason prior to the parole officer conducting the search that turned up the incriminating evidence. Quite simply put, the deputy had "no reasonable and legal basis for detaining Coleman while the officers waited for the parole officer to arrive at the scene." Additionally, the court held that an expired rental agreement, by itself, does not leave the driver with a lesser expectation of privacy in the vehicle and does not constitute reasonable suspicion to detain the driver.

United States v. Ludwig, 641 F.3d 1243, 1251, 2011 WL 1533520 (10th Cir. 2011). A trooper stopped Ludwig for speed. The brief encounter gave the trooper reasonable suspicion to believe that Ludwig was transporting drugs and the trooper deployed his drug detection dog for a sniff of the exterior of Ludwig's car. The sniff revealed a fabricated metal hidden compartment containing 11.3 pounds of ecstasy. Ludwig hired Steven Nicely, who frequently testifies in drug seizure cases. Mr. Nicely claimed that the dog was not reliable because his method of calculation suggested that the dog had a reliability rate of 58%. He also alleged that the dog was cued by the trooper. The Court of Appeals held that "a positive alert by a certified drug dog is generally enough, by itself, to give officers probable cause to search a vehicle." The court noted that the prosecution expert presented evidence that the dog had been certified twice in the preceding year by the California Narcotic Canine Association, a leading certification and training organization. The court recognized that the certification process tests for handler cuing. The court also rejected Mr. Nicely's claim that the trooper had cued the dog to respond to the drugs (contained in the not-yet-seen hidden compartment). The court also found that the trial court did not err in accepting the reliability calculations of the prosecution expert. The court also accepted the testimony of the prosecution expert that there was not any evidence of cuing the dog. Although the trial court declined to credit Mr. Nicely's calculations, the appellate court commented that even Mr. Nicely's calculation of 58% reliability would have been sufficient to establish probable cause to search.

United States v. Harrison, ___ F.3d ___, 2011 WL 1782961 (10th Cir. 2011). Federal agents watched Harrison's apartment over several months after receiving a tip that Harrison sold drugs to a gun runner. Unable to develop probable cause for a warrant, the agents decided to try a knock and talk. When Harrison came to the door, the agents identified themselves and told Harrison that they received a tip that there were drugs and a bomb inside the apartment and that their boss had sent them to investigate the danger to the community. After assuring Harrison that he had legal authority to consent to a search of his girlfriend's apartment and assuring him that they were not worried about a small bag of weed, Harrison consented to a search. Agents arrested him after finding a gun hidden in a wall. Harrison asserted that his consent was not valid because officers tricked him into believing that he was in danger. The prosecution argued that the bomb comment was meant to suggest that the agents believed that there was a bomb in the apartment, not that Harrison was a bombing target. The Circuit held the state failed to satisfy its burden of showing valid consent to enter. Courts have long considered trickery and ruses as factors in evaluating the voluntariness of consent under the Fourth Amendment. Typically, a false statement from an undercover officer or confidential informant about the purpose of a visit to a drug distribution location is permissible. Other kinds of ruses, such as claiming to be there to investigate a water leak, or claiming to be investigating a fictitious crime, are viewed more skeptically. The appellate court relied on a trial court finding that the false statements in this case implied that a bomb may have been planted in the apartment and that Harrison was in danger. The court also observed that the assurance that the officers were not interested in a small bag of weed "only further emphasized that bombs, not drugs, were the focus of their concern." Officers must be cautious that any ruse used to gain entry to a home does not give the impression that the occupant has no choice but to invite the officer in. The court noted that consent will not likely be valid when police trickery is so extreme that it deprives the occupant of the ability to make a fair assessment of the need to surrender his privacy.

Wisconsin v. St. Martin, 2011 WI 44 , 2011 Wisc. LEXIS 334 (6/22/11). Defendant battered his live-in girlfreind. She went to the police station to report the battery, and told police that her boyfriend was dealing cocaine. Police went to the residence and arrested him for the battery. They removed him from the residence, and got her consent to search, finding drugs and cash. Police then obtained a warrant and seized the items. Defendant alleged the evidence should be suppressed based on Georgia v. Randolph. The Wisconsin Supreme Court disagreed. It said that Randolph is to be construed narrowly. Although the language therein explaining the holding is very helpful, the rule stated in Randolph does not apply in this case because we conclude that St. Martin was not physically present at what the United States Supreme Court called the "threshold colloquy." This case closely resembles the facts presented in the Matlock case. The consent given by St. Martin's co-tenant was valid, and as in the Matlock case, that consent rendered the search constitutionally permissible because it cannot be trumped by an objection from an absent tenant. The cocaine and currency seized in the initial search of the attic is therefore admissible evidence.

State v. Jackson, ___ Kan.App.2d ___, ___ P.3d ____ (No. 104309, filed 07/29/11). El Dorado police served a narcotics search warrant at residence of Marla Davenport. The warrant specifically provided for the search of Davenport and any other persons living at the residence. Jackson, a social guest of Davenports, was present during the warrant service. An officer saw three or four purses lying on the floor in the kitchen and began to search them without asking any questions. He found methamphetamine and paraphernalia in Jackson's purse. She claimed it should have been suppressed, and the Court of Appeals agreed. Adopting the notice test, the court held the officer was on notice that the purse was not subject to the warrant. The notice test has two major elements, the notice element and a relationship exception, which have not been applied uniformly in the jurisdictions where the test governs. The notice test generally requires actual or reasonable constructive notice to police that an object within the premises may not be subject to the warrant or, without such notice, police may assume that the object is subject to the warrant. Police are authorized to search the personal effects of a guest who is more than just a casual visitor if the circumstances suggest that there is a relationship between that person and the illegal activities described in the warrant. Applying the notice test to the uncontroverted facts, the Court held the State did not meet its burden to demonstrate the search of the social guest's purse was lawful. The State failed to rebut the reasonable assumption that three or four purses lying on a kitchen floor during a social gathering attended by three or four women were owned by the guests rather than by the female occupant of the residence.

State v. Gilbert, ___ Kan. ___, ___ P.3d ___ (No. 100105, filed 07/15/11). Brian A. Gilbert was the passenger in a parked car he did not own. Law enforcement officers saw him in the vehicle and confirmed there was an outstanding warrant for his arrest. He was taken into custody, and the car was searched incident to his arrest. Inside the car, drugs and drug paraphernalia were discovered. The State concedes the search was unconstitutional. The dispositive issue is whether a passenger who does not own or have a possessory interest in the vehicle may challenge the vehicle's search incident to the passenger's arrest. The Court of Appeals held Gilbert had standing to contest the search under Brendlin v. California, 551 U.S. 249, 127 S. Ct. 2400, 168 L. Ed. 2d 132 (2007) (traffic stop is a seizure of a passenger as well as the driver). State v. Gilbert, No. 100,150, 2009 WL 2902575, at *5 (Kan. App. 2009) (unpublished opinion). It reversed Gilbert's convictions and ordered suppression of the evidence seized in the vehicle search. The State petitioned this court for review. The Supreme Court held Gilbert lacks standing to challenge the vehicle search under Rakas v. Illinois, 439 U.S. 128, 99 S. Ct. 421, 58 L. Ed. 2d 387 (1978) (person aggrieved by an illegal search and seizure only through introduction of evidence obtained by search of third-person's premises has not had his or her Fourth Amendment rights infringed), and reversed.

State v. Powell, ___ Kan.App.2d ___, ___ P.3d ____ (No. 102749, filed 06/24/11, reversed No. 102749, filed 06/06/14). Powell stole and damaged a police car and other property. Police obtained a warrant to collect blood and tissue from Powell, but failed to mention in their search warrant affidavit that blood and tissue were found in the police car. Powell tried to have DNA match testimony excluded, but the Court rejected his attempts, holding the Leon good faith exception applied because police actually obtained a warrant.

Davis v. United States, 556 U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 09-11328, filed 06/16/11.) Officer Curtis Miller arrested Petitioner Willie Davis for using a false name during a routine traffic stop. Incident to the arrest, Officer Miller searched the vehicle and discovered a gun. Davis was subsequently charged with being a convicted felon in possession of a firearm. At trial, Davis made a motion to suppress the gun as evidence, but the district court denied the motion and let the evidence come in. While Davis's appeal was pending, the Supreme Court decided Arizona v. Gant, holding that searches like the one conducted in Davis's case violate the Fourth Amendment. Davis argued on appeal that the retroactive application of Gant to his case should result in exclusion of the gun as evidence. The Eleventh Circuit Court of Appeals ruled against Davis. Davis appealed. The Supreme Court affirmed, finding Leon applied. The Court reasoned that suppression would do nothing to deter police misconduct in these circumstances, and because it would come at a high cost to both the truth and the public safety.

State v. Orlaske, ___ Kan.App.2d ___, ___ P.3d ____ (No. 103379, filed 06/10/11, pet for rev. filed 7/11/11). Choking and knee strikes to dislodge drugs the suspect was trying to swallow were reasonable actions based on the circumstances, and the warrantless search was justified by exigent circumstances.

State v. Ralston, ___ Kan.App.2d ___, ___ P.3d ____ (No. 103358, filed 06/10/11, pet. for rev. filed 7/7/11). A passenger in an stolen car that crashed while fleeing police has no reasonable expectation of privacy to challenge the search of her purse, which was located in the stolen car. The purse was abandoned property. Accordingly, the district court did not err in admitting Ralston's identification and the methamphetamine found in her purse.

Kentucky v. King, 561 U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 09-1272, filed 05/16/11). Police officers in Lexington, Kentucky, followed a suspected drug dealer to an apartment complex. They smelled marijuana outside an apartment door, knocked loudly, and announced their presence. As it turns out, they were at the wrong apartment. Officers set up a controlled buy of crack. The suspect went into an apartment complex and police were trying to catch up to him when heard a door shut. One officer radioed that the suspect entered an apartment on the right, but the entering officers did not hear it. They focused on the apartment on the left, where they detected the odor of burning marijuana. As soon as the officers began knocking, they heard noises coming from the apartment; the officers believed that these noises were consistent with the destruction of evidence. The officers announced their intent to enter the apartment, kicked in the door, and found respondent and others. They saw drugs in plain view during a protective sweep of the apartment and found additional evidence during a subsequent search. The trial court admitted the evidence holding that exigent circumstances—the need to prevent destruction of evidence—justified the warrantless entry. The Supreme Court of Kentucky reversed. The court assumed that exigent circumstances existed, but it nonetheless invalidated the search because the police should have foreseen that their conduct would prompt the occupants to attempt to destroy evidence. The Supreme Court reversed, holding that the conduct of the police prior to their entry into the apartment was entirely lawful, and police did not violate the Fourth Amendment or threaten to do so. In such a situation, the exigent circumstances rule applies. Rejecting the "police-created exigency" doctrine, the Court stated, "Occupants who choose not to stand on their constitutional rights but instead elect to attempt to destroy evidence have only themselves to blame for the warrantless exigent-circumstances search that may ensue."

State v. Kramer, 2011 WL 768034 (unpublished, Kan. App. February 25, 2011). Eric Kramer was stopped for displaying a tag that was not on file. The deputy who stopped Kramer noticed signs of impairment and conducted field sobriety tests, which Kramer failed. Kramer refused a preliminary breath test and was taken into custody. At trial, the court granted Kramer’s motion to suppress the evidence resulting from the traffic stop because, although the deputy who conducted the stop testified at trial regarding other suspicious activity of Kramer, the deputy’s express reason for stopping Kramer was because his license tag was not on file. The issue was whether the information from dispatch that a vehicle's tag is not on file would provide an officer with a reasonable and articulable basis for believing that a violation of K.S.A. 2008 Supp. 8-142, failure to register a vehicle, had occurred thus justifying a stop. The Court of Appeals found in this instance that it did. Reversed and remanded with directions.

State v Walker, ___ Kan. ___, ___ P.3d ___ (No. 99457, filed 04/01/11). A pedestrian flagged down a Kansas City Kansas police officer at approximately 6 p.m. and, through interpreters, told the officer "a black male wearing a black shirt and black shorts," burglarized his pickup. The suspect was last seen walking eastbound on Central Avenue. The officer found a person matching the description of the suspect sitting a bus stop about two blocks away and approached, told him he matched the description of a burglary suspect, and asked for identification. The parties disagree about how exactly the detention and search occurred, but the suspect, Walker, had a warrant and drugs on his person. He was arrested and convicted for possession of cocaine and marijuana. Walker claimed the officer had no reason to detain him based on the inadequate suspect description so the evidence should have been suppressed. The Supreme Court disagreed. It did not buy the State's argument that this was a voluntary encounter, but found that the facts and circumstances rose to reasonable suspicion to detain. It further held that running a warrants check on a pedestrian stopped based upon reasonable suspicion was constitutionally permissible based on Arizona v. Johnson and State v. Morlock.

Crowther v. State, ___ Kan.App.2d ___, ___ P.3d ____ (No. 102923, filed 03/25/11). In this K.S.A. 60-1507 action, Crowther claimed his trial counsel should have filed a motion to suppress evidence. Crowther was convicted of several violent felonies. Missouri police seized his computer with a search warrant and incriminating evidence was found therein. Crowther claimed the officers seized information not described in the warrant in violation of State v. Rupnick, 280 Kan. 720, 125 P.3d 541 (2005) and United States v. Walser, 275 F.3d 981, 986 (10th Cir. 2001), cert. denied 535 U.S. 1069 (2002), which hold that officers conducting searches (and the magistrates issuing warrants for those searches) cannot simply conduct a sweeping, comprehensive search of a computer's hard drive. 280 Kan. at 732. In rejecting Crowther's arguments, the Court of Appeals found that counsel's performance was not defective because the trial in this case predated Rupnick, and counsel could not have foreseen future changes in the law. Furthermore, the court said that while the files recovered from the computer were not specified in the warrant, were somewhat damaging to Crowther and may not be covered by Leon due to the vague warrant, there was plenty of other evidence to support the verdict and Crowther did not adequately address the prejudice aspect of his claim. The court described the general rule regarding computer searches as: "The Fourth Amendment to the United States Constitution requires that a search warrant describe the things to be seized with sufficient particularity to prevent a general exploratory rummaging in a person's belongings. A warrant for computer searches must affirmatively limit the search to evidence of specific types of material. Officers must be clear as to what it is they are seeking on the computer and conduct the search in a way that avoids searching files of types not identified in the warrant."

State v. Kacsir, ___ Kan.App.2d ___, ___ P.3d ____ (No. 102559, filed 02/25/11, pet. for rev. filed 3/28/11). Defendant drove onto the shoulder of Interstate-70 in Topeka and stopped her car less than 100 hundred yards in front of a parked Trooper. Seeing this, the trooper pulled up and turned on his emergency lights. The trooper later testified he approached Defendant to see if she was having mechanical problems with her car, if she needed directions, or if there was a medical emergency. The defendant was intoxicated and was convicted of DUI. She alleged all evidence should have been suppressed because there was no reason to stop her. The Court of Appeals held it was not a voluntary encounter because the Trooper turned on his emergency lights, but was a valid public safety stop because the trooper gave specific reasons for stopping and approaching the car.

People v. Xinos, 11 S.O.S. 782 (Los Angeles District Court of Appeals), reported in Metropolitan News-Enterprise, Wednesday, February 9, 2011 Page 3. Police violated the Fourth Amendment rights of a drunk driving/vehicular manslaughter suspect by downloading data from the car’s sensing and diagnostic module without a warrant, the Sixth District Court of Appeal ruled yesterday. The justices threw out George Xinos’ conviction for vehicular manslaughter in the 2006 death of Marcus Keppert, who was killed crossing a San Jose street. The court ordered that Xinos either be retried on that charge or resentenced on the remaining counts of failing to stop at the scene of an accident, driving under the influence with injury, and driving with an unlawful blood alcohol level with injury. Witnesses testified that Keppert was struck by a white SUV that left the scene. One witness said he pursued the vehicle and called its license plate number in to 911, then saw Xinos exit the vehicle looking dazed and in shock. Xinos was arrested a short time later when a police officer, investigating a suspicious vehicle report, made contact with Xinos, who admitted that the car was his and that he had been drinking. The officer, who was aware of the hit-and-run collision and saw that the vehicle was damaged and had blood on it, had it towed to a police warehouse for further inspection. Xinos was booked and had his blood drawn after refusing a breath test at the scene of the arrest, and had a blood alcohol contest of 0.18 about two hours after the crash, which an expert later testified meant it was about 0.22 when the collision occurred. About a year later after the crash, police—at the request of prosecutors—downloaded the data contained in the SUV’s SDM, also known as an event data recorder. The data showed that the vehicle accelerated during the five seconds prior to the collision, and a prosecution expert estimated that the vehicle reached a speed of between 69 and 76 miles per hour right before the crash, and struck Keppert at a speed of about 60 or 61 mph. The impact could have been avoided by swerving two feet to the left, the expert opined, or by going slower. In denying the defense motion to suppress, Santa Clara Superior Court Judge Marc Poche held that no warrant was required because the defendant lacked a reasonable expectation of privacy in the SDM data, and that there was no search in the Fourth Amendment sense. The judge also ruled that if there was a search, it fell within the automobile exception to the warrant requirement because the officers had probable cause. Jurors found the defendant guilty on all counts. Poche sentenced him to two years in prison for manslaughter, plus a five-year enhancement under "Courtney’s Law" for fleeing the scene of that crime. Imposition of sentence on the other counts was stayed. But Justice Franklin Elia, writing for the Court of Appeal, said Xinos had a reasonable expectation of privacy in the data contained within the module. "This case is fundamentally distinguishable from the cases where technology is used to allow law enforcement to capture information that a person is knowingly exposing to the public," the justice wrote, such as those where tracking devices are installed in a container so that signals can be followed to a location. With the SDM, Elia explained, data is generated for the personal use of the motorist. "While a person’s driving on public roads is observable, that highly precise, digital data is not being exposed to public view or being conveyed to anyone else," the justice said. He went on to conclude that at the time of the download, long after the crime occurred and the investigation concluded, the officers lacked probable cause. He noted that before the data was downloaded, the officers believed that the defendant had not been speeding and could not have prevented the collision because the victim’s visibility was limited.

United States v. Basher, No. 09-30311, 2011 U.S. App. LEXIS 1064 (9th Cir. Decided January 20, 2011). Campers heard gunshots and saw a camp fire in a "dispersed" or undeveloped campsite on the bank of the South Fork River, reported it to the Sheriff. A burn ban was in effect. The Sheriff responded, and pulled in front of a pickup near a tent, seeing a box of shotgun shells on the seat of the truck. He announced "Sheriff's Office," and asked the occupants of the tent to come out with their hands visible. They did. He asked where the gun was. After feigning ignorance, one told the other to get the gun, and produced a sawed-off shotgun. He was charged with a federal firearms violating and moved to suppress the evidence and confession arguing, among other things, that entry onto the curtilage of the tent violated his Fourth Amendment rights. The Ninth Circuit rejected the argument, saying that an undeveloped campsite area under these facts does not have a curtilage. If the area is visible to other campers, it is also visible to the police and does not deserve higher protection under the Fourth Amendment.

State v. Thomas, ___ Kan. ___, ___ P.3d ___ (No. 98123, filed 01/24/11). A Junction City police officer made contact with Thomas thinking that she was someone else whom he was attempting to serve with a subpoena. Once he figured out she was not the person he was looking for, he asked if he could fill out a field interview card (FIC). Thomas agreed. When she gave her address, the officer recognized it from a prior call where Thomas's husband reported that Thomas had left with a drug dealer. Twice during the encounter, the officer told Thomas that she was not under arrest and was free to go. At the conclusion of the 5-minute encounter, the officer shook hands with Thomas and said good-bye. He then performed a Columbo pivot and got consent to ask a few more questions. After quizzing her about drug use, which she denied, he called for back-up and for a female officer. He told Thomas to be honest with him, and she eventually admitted to possessing two crack pipes she said she found on the ground. She was prosecuted for possession of the crack in the pipes, and alleged that her detention was not supported by reasonable suspicion. The district court denied her motion to suppress and the Court of Appeals affirmed. The Supreme Court reversed, holding the encounter after the Columbo pivot was not consensual and was not supported by reasonable suspicion. It said that while a call for back up does not necessarily equate to detention, this officer's "call for back-up, when combined with his other conduct, would convey to a reasonable person that he or she was not free to refuse to answer Brown's questions or otherwise terminate the second stage of the encounter."

United States v. Wilkinson, ___ F.3d ___ (10th Cir. No. 10-6024, filed 01/18/11). Lawton police had a tip that a black male in a red pickup would arrive in town at a certain time to deliver drugs. Undercover officers saw a black male driving a red pickup in Lawton, and noticed the pickup had a plastic cover over its temporary paper tag. They asked a marked unit to stop the vehicle, and later found drugs in it. Wilkinson claimed the evidence should have been suppressed because the marked unit did not know why he was stopping the vehicle. The Circuit rejected his argument, saying the stop was proper because the "collective knowledge" of the officers supported the stop, even if the requesting officer does not communicate the information to the other officer. They also held the collective knowledge doctrine applies to traffic stops for misdemeanors, as well as stops for felonies.

United States v. Polly, 630 F.3d 991 (10th Cir. 2011). Oklahoma City police were surveilling an auto repair shop they suspected was trafficking narcotics. Polly started to pull into the shop, but after possibly seeing all the police cars around it, decided to go straight. An undercover officer recognized Polly from prior drug transactions, and began following him. After seeing Polly speed through a residential neighborhood, he called a marked unit to stop the car for speeding and unlawfully crossing a solid yellow line. Polly denied having any drugs in the car or on his person. During a consensual frisk (to put him on the back seat of the police car to issue his tickets), the officer found crack cocaine in Polly's pocket. Polly argues that the search of his person was unreasonable, both because the traffic stop was unjustified and because the resulting detention exceeded the scope of the stop. The Circuit rejected his claims, finding that speeding and crossing the double-yellow line during an aborted left turn was sufficient reasonable suspicion to stop the vehicle. Further, they held that the pat-down was consensual, and once the officer felt immediately apparent contraband, he was justified in going in Polly's pocket. As to the search of Polly's car thereafter, the Court rejected the government's claim it was a valid search indicent to arrest based on Gant, but upheld it as a vehicle exception.

People v. Diaz, ___ P.3d ___ (Cal. S. Ct. No. S166600, filed 01/03/11). The Fourth Amendment to the United States Constitution permits law enforcement officers, approximately 90 minutes after lawfully arresting a suspect and transporting him to a detention facility, to conduct a warrantless search of the text message folder of a cell phone they take from his person after the arrest. Such a search is valid as being incident to a lawful custodial arrest. California police arrested Diaz for selling drugs to an informant. Diaz denied it. Officers looked at his text messages, and found a message on his cell phone stating, "6 4 80." Based on his training and experience, the officer interpreted the message to mean "[s]ix pills of Ecstasy for $80." Within minutes of discovering the message (and less than 30 minutes after the cell phone's discovery), the officer showed Diaz the message, who then admitted participating in the sale of Ecstasy.

Sentencing

State v. Grebe, ___ Kan.App.2d ___, ___ P.3d ____ (No. 104144, filed 10/28/11). Grebe was convicted and sentenced for various offenses, including DUI third and fourth and sentenced to serve a controlling 59-month sentence. Grebe argues the district court erred by failing to consider community service as an option to paying the mandatory DUI fines. The state argued that the 59-month sentence made community service an impossibility considering the requirement in K.S.A. 8-1567(j) that community service be completed in one year. The Court of Appeals agreed and affirmed.

State v. Malmstrom, ___ Kan. ___, ___ P.3d ___ (No. 101604 filed 03/25/11). Where the legislature permits the existence of conflicting statutory provisions prescribing different sentences to be imposed for a single criminal offense, the rule of lenity requires that any reasonable doubt as to which sentence applies must be resolved in favor of the offender.

Title 7

Thompson v. North American Stainless, 556 U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 09-291, filed 01/24/11). Petitioner Eric L. Thompson, a metallurgical engineer formerly employed by Respondent North American Stainless ("Stainless"), sued Stainless under Section 704(a) of Title VII of the Civil Rights Act of 1964, alleging that Stainless fired him in retaliation for a gender discrimination complaint his then-fiancée (and now wife) Miriam Regalado filed against Stainless with the Equal Employment Opportunity Commission ("EEOC"). The Sixth Circuit found that Thompson did not have standing to sue Stainless and dismissed his complaint. Thompson argued that Title VII not only prohibits third-party retaliation but also gives third-party victims standing to sue, primarily because this furthers Title VII's goal of eliminating discrimination and is consistent with the EEOC's longstanding interpretation of Title VII. In opposition, Stainless argued that Section 704(a) does not give those third parties standing to sue the allegedly retaliating employer because permitting such an action would contradict congressional intent and unnecessarily curtail employers' ability to manage their workforces. The United States Supreme Court agreed with Thompson, and reversed the 6th Circuit.





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