January 1, 2010 through December 31, 2010 (or thereabouts)
Quick Links to prior year lists.
Full text of United States Supreme Court decisions: http://supct.law.cornell.edu/supct/
Full text of 10th Circuit decisions: http://ca10.washburnlaw.edu/http://www.kscourts.org/ca10/
Full text of Kansas Appellate decisions: http://www.kscourts.org/Cases-and-Opinions/opinions/
Perdue v. Kenny A., 556 U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 08-970, filed 04/21/10). In 2005, Kenny A. and eight other plaintiffs (collectively "Kenny A.") settled a federal civil rights class action lawsuit against the Georgia Department of Human Resources and others. The settlement provided, in relevant part, that "the Plaintiff Class is entitled to recover its expenses of litigation, including reasonable attorneys fees . . . pursuant to 42 U.S.C. § 1988." The District Court for the Northern District of Georgia approved a lodestar amount and a fee enhancement, which the court attributed to the extraordinary performance by Kenny A.'s counsel. The Court of Appeals for the Eleventh Circuit affirmed. The U.S. Supreme Court reversed holding the 11th Circuit did not apply the correct standard. "We have stated in previous cases that such an increase is permitted in extraordinary circumstances, and we reaffirm that rule. But as we have also said in prior cases, there is a strong presumption that the lodestar is sufficient; factors subsumed in the lodestar calculation cannot be used as a ground for increasing an award above the lodestar; and a party seeking fees has the burden of identifying a factor that the lodestar does not adequately take into account and proving with specificity that an enhanced fee is justified. Because the District Court did not apply these standards, we reverse the decision below and remand for further proceedings consistent with this opinion."
Thomas v. Durastanti, ___ F.3d ___ (10th Cir. No. 07-3343 filed 06/04/10). In an action claiming that a BATF agent violated plaintiff's Fourth Amendment right to be free from unreasonable seizures when the agent shot plaintiff, the denial of summary judgment based on qualified immunity is reversed where a reasonable officer would have had probable cause to believe that there was a threat of serious physical harm to himself or others in the situation presented. ATF agents saw a Lincoln exiting a high-crime neighborhood near Wichita. They followed the vehicle and noticed it was speeding and had a dealer's tag. Dispatch advised the registration was not on file. A trooper joined the surveillance. As the Lincoln pulled into a gas station, the ATF agents pulled in front of the Lincoln and agents approached the Lincoln in plain clothes and with guns drawn. Meanwhile the trooper pulled in behind the Lincoln and turned on his emergency lights. Depending on which version of the facts you believe, the three suspects in the car did not know the ATF agents were police, and the occupants of the Lincoln thought they were being robbed. If you believe the police officer's story, both ATF agents and the trooper told the occupants to get back in the car and keep their hands where they could be seen. The occupants complied, but then started driving away, steering around the ATF agent's SUV. There were factual disputes about the speed of the Lincoln and the position of the officers, but the Court examined the trooper's video that recorded portions of this 37-second encounter. The video showed that the Lincoln was headed for agent Durstanti and in fact struck him, causing him to roll off its hood. Durstanti fired several rounds into the Lincoln about 1 second prior to being hit by the Lincoln and two rounds after rolling off the hood. The Circuit found the officer should be entitled to summary judgment because deadly force is reasonable when an officer is threatened by a weapon (including a car trying to run over the officer). The court found that based on the totality of the circumstances (sufficient reasonable suspicion to stop the car; close proximity to a vehicle deliberately trying to move out of the parking lot), the officer's actions were objectively reasonable, even if mistaken. "[I]t goes without saying that an officer in close quarters is no match for a two-ton vehicle."
Fletcher v. Burkhalter, ___ F.3d ___ (10th Cir. No. 09-7003, filed 05/24/10). The victim of a fraudulent land sale provided Deputy Burkhalter information showing that Jack Fletcher sold the victim land that Fletcher did not own. The victim identified Fletcher by reference to his post-office box in Eufala, Oklahoma; his cell-phone number; and the license-plate number, make, model, and color of his car. He also said Fletcher was either in his late 70s or 86. The victim included a hand-drawn map showing where Fletcher lived. One of the sale documents had the initials "JEF" by a modification of terms. Burkhalter ran Fletcher's name through the Department of Public Safety database and came up with two Jack Fletchers, one apparently residing in Eufala, and another in Oklahoma City. The Oklahoma City Jack Fletcher had a registered vehicle matching the description provided by the victim. Burkhalter included all the information he had in his incident report, and did nothing else to investigate the matter other than signing the probable cause affidavit forwarded to him by the DAs office. Eventually, an arrest warrant issued to Jack Wade Fletcher, the plaintiff (the opinon is not clear on which Jack Fletcher he is). The district court's denial of summary judgment based on qualified immunity is affirmed where: 1) the court lacked jurisdiction to consider defendant's argument that the district court erred in holding that there was sufficient evidence to support a finding of malice; and 2) the approvals of the district attorney and the judge did not absolve defendant of liability.
Lewis v. Tripp, ___ F.3d ___ (10th Cir. No. 09-6105, filed 05/17/10). Plaintiff, a chiropractor who had his license revoked, was suspected of continuing to engage in practice. Tripp, president of the Oklahoma Board of Chiropractic Examiners, had staff issue an administrative subpoena, seize patient records, and shut down the practice. Lewis sued, claiming various violations of his rights. The Circuit, one judge dissenting, found no evidence to suggest that Dr. Tripp was personally involved in the Fourth Amendment violation Dr. Lewis alleges, and directed summary judgment for Tripp.
Armijo v. Peterson, ___ F.3d ___ (10th Cir. No. 09-2114, filed 04/13/10). Las Cruces police received tips that bomb threats would be called in to Oñate High School. They also received information the threats would be called in by gang members, who planned to open fire on the students as they evacuated the school. The bomb threats were called in from disconnected cell phones. Police (wrongly) identified Christopher Armijo as the likely suspect. After locking down the school, they went to Armijo's house. They knocked, but did not get an answer. They found the door unlocked, so walked in, conducted a protective sweep, and then interviewed Christopher, who they found sleeping in bed. Once it became apparent he was not their suspect, they left. Armijo's mother sued, claiming officers violated the Fourth Amendment. The district court denied summary judgment based on qualified immunity. The Circuit reversed, finding the entry was based on exigent circumstances; an emergency existed; that the Terry detention of Armijo in his home was justified; and the Buie sweep of the home was justified based on the potential threat.
Zia Trust Company v. Montoya, ___ F.3d ___ (10th Cir. No. 09-2006, filed 03/0910). Montoya, a Dona Ana County deputy, shot and killed a man when responding to a domestic dispute. A man called police during a dispute with his adult son. Dispatchers informed the responding officer the suspect had mental issues and there were two firearms at the residence. Montoya pulled up right in front of the residence and got out of his car with his gun drawn. He did not identify himself nor say anything to anyone. It was dark outside. Montoya put himself generally in front of a van driven by the suspect about 15 feet away and at a 65-degree angle to the passenger side. Montoya claimed the tires were pointed at him, and when the driver raced the engine and the van lurched forward about a foot (despite being stuck on a retaining wall), Montoya shot the driver in the neck. Noting hotly disputed facts, the district court denied summary judgment based on qualified immunity. The Circuit affirmed, finding the alleged facts were sufficient to state a claim for excessive force. In doing so, the court considered whether officers ordered the susepct to drop his weapon and the suspect's compliance, whether hostile motions were made toward the officers with the weapon, the distance separating the officers and the suspect and the manifest intentions of the suspect. See Estate of Larsen ex rel. Sturdivan v. Muir, 511 F.3d 1255 (10th Circuit 2008).
Rhoten v. Dickson, ___ Kan. ___, ___ P.3d ___ (No. 98837, filed 01/29/10), affirming 40 Kan.App.2d 433, 192 P.3d 679 (2008). When discovery revealed that Bruce Dickson, who struck Danielle Rhoten's car was not aware a Topeka police officer was chasing him, the federal court dismissed Danielle Rhoten's civil rights complaint against The City of Topeka and Lieutenant Frank Pase, who was attempting to catch up, but was not pursuing Dickson. The federal judge found no causal connection between the police officer's acts and Rhoten's injury. After that ruling, the federal court declined to hear Rhoten's state negligence claims, and she filed a lawsuit against the City and the officer in Shawnee district court. The district court dismissed her suit on the basis of res judicata, sometimes called claim preclusion, and collateral estoppel, also known as issue preclusion. The Court of Appeals affirmed, finding that the lack of causation finding in the federal action bars a proceeding in a negligence action.
Weise v. Casper, ___ F.3d ___ (10th Cir. No. 09-1085, filed 01/27/10). In a Bivens action based on the exclusion of plaintiffs, by volunteers acting under government supervision, from a speech by then-President Bush, dismissal of the complaint based on qualified immunity is affirmed where plaintiffs failed to identify any First Amendment doctrine that prohibited the government from excluding them from an official speech on private property. Plaintiffs were asked to leave due to a bumper sticker on their car stating, "no more blood for oil."
Steed v. McPherson Area Solid Waste Utility, ___ Kan.App.2d ___, ___ P.3d ____ (No. 100,831, filed 01/08/10). A 12-105b claim served on a utilities accountant and personnel manager substantially complied with 12-105b because she was the de facto clerk and the board did not maintain offices at the utility. Because the plaintiffs prematurely filed their petition six days after filing their claim, it was a nullity. But an amended petition filed less than 60 days after the claim was deemed denied was timely and gave the district court subject matter jurisdiction over the proceeding.
Civil Commitment of Sex Offenders
United States v. Comstock, 556 U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 08-1224, filed 05/17/10). Federal law allows a district court to order the civil commitment of a mentally ill, sexually dangerous federal prisoner beyond the date he would otherwise be released. 18 U. S. C. § 4248. The Government instituted civil-commitment proceedings under § 4248 against respondents, each of whom moved to dismiss on the ground, inter alia, that, in enacting the statute, Congress exceeded its powers under the Necessary and Proper Clause, U. S. Const., Art. I, §8, cl. 18. Agreeing, the District Court granted dismissal, and the Fourth Circuit affirmed on the legislative-power ground. The Unites States Supreme Court reversed, holding the Necessary and Proper Clause grants Congress authority sufficient to enact § 4248. The court cited five considerations: (1) the breadth of the Necessary and Proper Clause, (2) the long history of federal involvement in this arena, (3) the sound reasons for the statute’s enactment in light of the Government’s custodial interest in safeguarding the public from dangers posed by those in federal custody, (4) the statute’s accommodation of state interests, and (5) the statute’s narrow scope.
Padilla v. Kentucky, 556 U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 08-651, filed 03/31/10). In 2002, Jose Padilla, a Legal Permanent Resident of the United States, pleaded guilty to a Kentucky drug trafficking offense. Padilla claims he pled guilty in reliance on his defense counsel's advice that he did not have to worry about deportation as a consequence of his plea. In fact, under federal law, drug trafficking is a deportable offense. Padilla claimed that under the Sixth Amendment, he was denied effective assistance of counsel because his defense counsel failed to advise him as to the possible immigration consequences of his plea, and in fact misadvised him. The Commonwealth of Kentucky contended that Padilla was not denied effective assistance of counsel, because the Sixth Amendment does not require that defense counsel advise clients of collateral consequences, and immigration consequences are collateral consequences of guilty pleas. The Supreme Court disagreed, and held that Padilla made a prima-facie showing of ineffective assistance satisfying the first prong of Strickland. The court remanded for a hearing on how Padilla was prejudiced by the bad advice.
Medina v. Board of Trustees of Police & Fire Retirement Board of City of Wichita, Kansas, ___ Kan.App.2d ___, ___ P.3d ____ (No. 102097, filed 05/21/10. Plaintiff was a city police officer. The officer responded to an unattended child call and twisted his right knee while getting out of his patrol car. Later, at home, his right knee buckled and he fell, injuring his ankle. Plaintiff received workers compensation benefits for his injuries. Plaintiff then sought disability retirement benefits from the city through a Board of Trustees. The Board of Trustees denied plaintiff's application for benefits because his initial injury, the twisted knee, was not directly attributable to the performance of an act of duty. The Board reasoned that plaintiff twisted his knee when he got out of the car, an action common to all and not unique to a police officer. The plaintiff's ankle injury occurred when his knee buckled and he was not on duty. The Board concluded that plaintiff's injuries were not a service-connected disability and he was not entitled to benefits. The district court affirmed the decision of the Board. On appeal, the officer argued that he need only prove he was permanently injured while engaged in the performance of any work duties. The Kansas Court of Appeals pointed out that the City ordinance required a service-connected injury suffered during performance of occupational duties which "inherently involving special risks not generally assumed by a citizen in the ordinary walks of life." Because stepping out of a patrol car did not involve special risks in this instance, the court affirmed judgment for the Board.
Poteet v. Kansas Department of Revenue, ___ Kan.App.2d ___, ___ P.3d ____ (No. 101986 filed 01/15/10). A trooper was called to an accident scene and saw a vehicle on its side. It appeared the vehicle had driven through a barb-wire fence and across a field before it rolled. EMS personnel said the driver had an odor of alcohol coming from her. Even though the trooper never made contact with the driver, he had reasonable grounds to suspect she was operating under the influence and to order a blood test. The district court read City of Hutchinson v. Davenport, 30 Kan. App. 2d 1097, 1101, 54 P.3d 532 (2002)(odor of alcohol by itself is not enough) too narrowly, and disregarded the facts of the accident, which certainly suggested an impaired driver.
Byrd v. Kansas Department of Revenue, ___ Kan.App.2d ___, ___ P.3d ____ (No. 101,189, filed 01/15/10). Byrd provided a blood sample that tested at 0.28. Upon receipt of the results, Atchison County Deputy Clark executed the DC-27 form and gave it to an administrative assistant, Hale, who mailed it to Byrd. Byrd argued to the district court that Clark had to mail the notice himself to comply with K.S.A. 8-1002(c). The district court agreed. The Court of Appeals reversed, finding substantial compliance with the service statue based on the 1993 amendment to K.S.A. 8-1001(v) ("this act is remedial law and shall be liberally construed to promote public health, safety and welfare.") The Court of Appeals held the 1993 legislative amendment meant that Anderson v. Kansas Dept. of Revenue, 18 Kan.App.2d 347, 355, 853 P.3d 69, rev. denied 253 Kan. 856 (1993)(strict compliance with personal service statute K.S.A. 8-1002(c) required), was no longer good law.
In re J.O., ___ Kan.App.2d ___, ___ P.3d ____ (No. 103481, filed 05/06/10). Father in a termination of parental rights case was incarcerated in Colorado at the time of the hearing and requested to appear and testify by telephone. Shawnee County Judge Mitchell denied the request and terminated his rights. The Court of Appeals reversed, holding that denial of the request to testify by telephone violated the father's due process rights. "We hold the district court's strict application of Rule 145 and K.S.A. 60-243(c) to prohibit telephonic participation under these circumstances violates constitutional due process requirements. The integrity of the judicial process obviously must include incorporation of some flexibility in the mode of appearance at a trial on the merits for good cause in compelling circumstances, as recognized in FRCP 43(a). Where the only manner of appearance for an incarcerated person to participate in a proceeding to protect a fundamental liberty interest is by telephone, neither the rule nor the statute should prohibit that modicum of due process."
State v. Shadden, ___ Kan. ___, ___ P.3d ___ (No. 97457, filed 07/09/10), reversing 40 Kan. App. 2d 1103, 199 P.3d 167 (2009). On December 27, 2005, Richard Shadden unfortunately drove poorly while in view of two Merriam, Kansas police officers. Shadden was stopped and was subjected to field sobriety tests. At least one of the tests (walk and turn) has standards promulgated by the National Highway Traffic Safety Administration (NHTSA). NHTSA's standards currently train officers to look for eight possible clues of intoxication based upon a field sobriety test(s). In the walk and turn, Shadden did not do well. At trial, the investigating officer testified to the officer's observations of Shadden's driving, and to the field sobriety tests. However, the officer went a little further, and that is the point of this appellate case: the officer's testimony "went beyond an indication that Shadden attempted to perform certain field sobriety tests and demonstrated multiple clues of intoxication. … [instead, the officer] also testified that according to NHTSA standards, a driver who exhibits two clues of intoxication during the walk-and-turn test has a 68% likelihood of having at least a .10 BAC." The Court of Appeals panel did not like those last few words. It held that the officer was not qualified to testify about percentages and the reliability of the NHTSA standards, and that the State had failed to put on any expert testimony to qualify the NHTSA standards as scientifically reliable. The Kansas Supreme Court agreed that the officer should not have been allowed to testify that a person exhibiting two clues of intoxication during the walk-and-turn test has a 68% likelihood of having at least a .10 BAC," but reversed the Court of Appeals on its conclusion that officers should not be allowed to use words like "tests," "pass," "fail," or "points" when referring to SFTs performance on a NHTSA test, because such words are commonly used by lay and expert witnesses to describe evidence that is not scientific in nature. Thus, the officer's testimony should have been admitted.
State v. Doyle 2010 WL 744796 (02/26/10)(unpublished). Defendant committed at least eight traffic infractions while fleeing from the police. He was physically removed from the vehicle. Officers noted: odor of alcohol, poor balance, admitted to drinking. The defendant was arrested. While at the station he refused to perform SFSTs and refused the evidentiary breath test. The officer testified he felt the defendant could not safely operate a vehicle. During closing arguments the defendant claimed he did not perform the SFSTs cause he was already under arrest. The State countered with "He refused to show that he wasn't under the influence" During appeal the defendant claimed the officer could not express his opinion. The court cited State v. Kendall, 274 Kan. 1003 (2002) and City of Dodge City v. Hadley, 262 Kan. 234 (1997) in stating that an officer's opinion as either expert or lay opinion matters little since either type of testimony is acceptable. The defendant also claimed burden shifting during closing argument. Citing 16 Kan.App.2d 585 (1992) a defendant's refusal to submit to field sobriety testing is admissible for purposes of proving DUI. Lastly felony flee and elude is NOT a multiple acts case and the jury does not have to be unanimous on the traffic infractions only that he committed 5 of them.
State v. Germann 2010 WL 481268 (02/05/10)(unpublished). During jury trial the officer indicated Germann was under the influence of alcohol to the extent he was not capable of driving safely. He was found guilty. Germann appeals claiming the officer commented on the ultimate issue for the jury and this was improper. In State v. Kendall, 274 Kan. 1003 (2002) the Supreme Court held the officer did not opine the defendant was guilty of the crime and that was admissible. It was irrelevant whether the evidence was characterized as expert or lay testimony because either type of testimony is acceptable. Court also noted City of Dodge City v. Hadley, 262 Kan 234 (1997).
State v. Weilert, ___ Kan.App.2d ___, ___ P.3d ____ (No. 102917, filed 03/085/10). Weilert crashed his motorcycle. Troopers suspected he had been drinking, and after a PBT confirmed he had, Weilert admitted drinking. Upon arrival at the courthouse, Weilert asked for medical treatment of his hands. The trooper took him to a hospital and read him an implied consent advisory. Weilert refused testing, but consented to withdrawal of blood for medical purposes. A trooper also overhead Weilert that he had six hard-liquor drinks before the accident. The state subpoenaed the blood results. The district court suppressed the results and Weilert's statement to the doctor, reasoning that a HIPAA requires privacy and the DUI case exception to physician-patient privilege in K.S.A. 60-427(b) was unconstitutional. The Court of Appeals reversed. It reasoned the statute was entitled to a presumption of validity, and even if a HIPAA violation occurred, it did not require application of the exclusionary rule.
State v. Johnson, ___ Kan.App.2d ___, ___ P.3d ____ (No. 100864, filed 05/28/1010). Johnson was stopped in a checklane at approximately 1:25 a.m. and showed signs of intoxication. Where testimony establishes that an officer's field notes were destroyed after the information contained therein was fully and accurately transcribed into a narrative report, there is no due process violation unless it is shown that the officer exhibited bad faith in his or her actions. "In cases where the State fails to preserve potentially useful evidence, there is no due process violation unless the defendant shows bad faith on the part of the State. Arizona v. Youngblood, 488 U.S. 51, 58, 102 L. Ed. 2d 281, 109 S. Ct. 333 (1988); Taylor v. State, 251 Kan. 272, 278, 834 P.2d 1325 (1992)[, disapproved on other grounds State v. Rice, 261 Kan. 567, 932 P.2d 981 (1997)]." State v. LaMae, 268 Kan. 544, 550, 998 P.2d 106 (2000). The question of whether the State acted in bad faith is a question of fact. 268 Kan. at 551. On appeal, this court reviews the district court's findings of fact to determine if they are supported by substantial competent evidence. Also, this court reviews the findings to determine if they are sufficient to support the district court's conclusions of law. State v. Finley, 273 Kan. 237, 241, 42 P.3d 723 (2002). The Court also rejected his arguments that a breath sample needed to be preserved; that one test was constitutionally inadequate, that all thermometers used in the Intox 5000 simulator needed to be certified; and that the actual people performing the necessary certifications needed to be present to testify.
State v. Dukes, ___ Kan. ___, ___ P.3d ___ (No. 96563, filed 05/06/10). Affirms State v. Dukes, 38 Kan.App.2d 958, 174 P.3d 914 (2008).
McDonald v. Chicago, 556 U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 08-1521, filed 06/28/10). QUESTIONS PRESENTED: Whether the Second Amendment right to keep and bear arms is incorporated as against the States by the Fourteenth Amendment's Privileges or Immunities or Due Process Clauses. The Supreme Court's ruling in the D.C. case, District of Columbia v. Heller, was portrayed as remarkable because it announced for the first time that Second Amendment gun rights are individual rights (rather than rights only associated with militias protecting against tyranny from the federal government). The Supreme Court found D.C.'s ban on handguns to violate individuals' Second Amendment rights. However, the case applied only to the District of Columbia and not to any states or cities outside D.C. All eyes will be watching to see what the Supreme Court does. It could either simply decide whether or not individual Second Amendment rights apply to residents of each state, or it could go further and detail what types of gun restrictions will be allowed going forward. As held in the D.C. case, individuals have Second Amendment rights, but some gun restrictions may satisfy constitutional requirements. Many (including lower courts) hope that the Supreme Court offers specific clarification as to which types of gun restrictions will pass muster and which won't. Other cities, including New York, face similar challenges to their gun laws.
Johnson v. United States, 556 U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 08-6925, filed 03/02/10). Curtis Darnell Johnson was convicted of possession of ammunition by a convicted felon. Because he had been previously convicted of three felonies, one of which was a battery involving possible touching of another person, the prosecution sought to sentence him under the Armed Career Criminal Act ("ACCA"). The ACCA is a federal law that imposes a minimum sentence of fifteen years in prison on criminals who have at least three violent felony convictions. Johnson appealed his sentence, claiming that a battery potentially caused by touching another person did not meet the physical force requirement of the ACCA to be considered a violent felony. The Supreme Court agreed. It held that the Florida battery conviction for "actually and intentionally touching" someone did not have, as an element, the use of physical force against the person of another as required by 18 U.S.C. § 924(e)(2)(B)(I). The crime was originally a misdemeanor battery, but was enhanced to a felony because of Johnson's record. The Court was not convinced that intentional touching was a violent felony as that term is used in 18 U.S.C. 924(e)(2)(B).
United States v. Stevens, 556 U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 08-769, filed 04/20/10). Defendant was convicted of distribution of depictions of unlawful animal torture in violation of 18 U.S.C. 48 for selling Pit Bull fighting videos. The Third Circuit held the statute violates the First Amendment. The U.S. Supreme Court agreed.
United States v. Smith, ___ F.3d ___ (10th Cir. No. 09-2040, filed 06/03/10). Smith and a female companion got drunk and did some drugs at a party on the Navajo reservation in New Mexico. After the female passed out, she awoke to find Smith having sex with her. Smith was convicted of rape and appeals, contending the district court should have suppressed his confession because (a) it was not made knowingly and voluntarily, and (b) he was not promptly taken before a federal magistrate judge. Second, he asserts that the district court improperly allowed Jane Doe’s statement to the neighbor—“Help me, help me. He raped me.”—to be admitted under the excited-utterance exception to the hearsay rule. Third, he challenges the district court’s conclusion that evidence sufficient to sustain his conviction was presented at trial. Finally, Smith seeks reversal of the special conditions of supervised release relating to children and disabled adults that the district court imposed. The Circuit rejected all his arguments, finding the confession was voluntary. At the time Smith waived his constitutional rights, it had been eight and a half hours since he had last been seen drinking, he did not appear intoxicated to the interviewers, he did not smell of alcohol, he stated that he was sober when asked, and he provided clear responses to a substantial number of questions. Doe's statement was properly admitted as an excited utterance, there was sufficient evidence and the release conditions were reasonable.
Berghuis v. Thompkins, 556 U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 08-1470, filed 06/01/10). Police picked up Van Chester Thompkins in Ohio for murder and attempted murder. After taking him into custody, the officers read him Miranda warnings and asked whether he understood them. He indicated that he did. He did not, however, either invoke his rights (by saying, for example, "I don't want to answer any questions" or "I want a lawyer") or explicitly waive them (by expressing an affirmative desire or willingness to answer questions). The police then began to interrogate Thompkins about the suspected murder, and he responded with short verbal and nonverbal answers and without much elaboration. About 2 hours and 45 minutes into the interrogation a detective asked whether Thompkins prayed to God for forgiveness for "shooting that boy down" – Thompkins teared up and responded "Yes." The government later offered into evidence this affirmative response, an apparent confession, at Thompkins's trial, which ended in convictions for murder, attempted murder, and firearm offenses. Thompkins unsuccessfully appealed his convictions in the Michigan courts and then brought a petition for habeas corpus in federal court. The district court denied the petition, but the U.S. Court of Appeals for the Sixth Circuit reversed, finding that Thompkins's statement to police should have been suppressed, because he had not waived his Miranda rights. The United States Supreme Court reversed, holding the state court’s decision rejecting Thompkins’ Miranda claim was correct under de novo review and therefore necessarily reasonable under AEDPA’s more deferential standard of review. It reasoned that Thompkins’ silence during the interrogation did not invoke his right to remain silent because it was equivocal, and Thompkins waived his right to remain silent when he knowingly and voluntarily made a statement to police.
United States v. Cook, ___ F.3d ___ (10th Cir. No. 08-2297, filed 04/05/10). Cook and two of his cellmates at the Doña Ana County Detention Center killed an inmate named Gantz. Local sheriff's officers investigated, and Cook invoked his right to remain siglent and contact an attorney in a March 2005 interview. Later the FBI took over the investigation. They did not know about Cook's March 2005 invocation. In June 2005, they placed a cooperating informant facing a lengthy federal sentence in Cook's cell. Cook confessed his involvement in Gantz's death to the informant, who was wired and recorded the confession. Cook moved to suppress, contending a violation of Miranda and Edwards. The district court suppressed the confession. The Circuit reversed. It held that questioning by a fellow inmate did not constitute custodial interrogation requiring Miranda warnings. Miranda only applies to incommunicado interrogation of individuals in a police-dominated atmosphere. It held that Edwards and Mosley did not apply since Cook did not know he was speaking with a government agent and thus there was no custodial interrogation.
State v. Cluck, ___ Kan.App.2d ___, ___ P.3d ____ (No. 101347, filed 04/08/10). Cluck wrecked his car while drunk, killing three people. The day after the accident, he voluntary went to an interview room at the jail and gave an interview, implicating himself. Cluck claims he was subjected to custodial interrogation without benefit of Miranda warnings because the investigator considered him the only suspect and the interview took place at the jail. The court rejected this claim, noting that Cluck voluntarily appeared at the jail and his statement was voluntary. The court did find that the sentencing court overstepped its bounds by ordering Cluck to post the victims' pictures in his jail cell.
Maryland v. Shatzer, 556 U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 08-680, filed 02/24/10). In 2003, Michael Shatzer ("Shatzer"), an inmate at the Maryland Correctional Institution, invoked his Miranda rights, refusing to speak about alleged sexual child abuse without an attorney present. The investigation into Shatzer's alleged sexual child abuse was closed later that year. In 2006, upon further evidence, the police opened a new investigation on the same matter and re-interrogated Shatzer, who had remained incarcerated for an unrelated offense during the entire interval. Shatzer waived his Miranda rights and made certain admissions. At trial, Shatzer moved to suppress the statements he made in 2006, arguing that the police's re-interrogation violated the Supreme Court's decision in Edwards v. Arizona, which held that, once a suspect requests counsel, the police and/or prosecutor may not subject that suspect to further interrogations until counsel is made available. The United States Supreme Court held that because Shatzer experienced a break in Miranda custody lasting more than two weeks between the first and second attempts at interrogation, Edwards does not mandate suppression of his 2006 statements. In doing so, the Court noted the importance of voluntary confessions. The Court stated, "[v]oluntary confessions are not merely a proper element in law enforcement, they are an unmitigated good, essential to society's compelling interest in finding, convicting and punishing those who violate the law." Maryland v. Shatzer, web slip opinion at 5-6 (internal citations and quotation marks omitted).
Florida v. Powell, 556 U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 08-1175, filed 02/23/10). Kevin Dwayne Powell was convicted of being a felon in possession of a firearm. When he was arrested, police gave Powell his Miranda warnings, including telling him he had a right to a lawyer before questioning. Powell's lawyers objected, saying police did not tell him he had a right to have a lawyer during his police interrogation. The Florida Supreme Court overturned the conviction, saying the police's Miranda warning was insufficient. The Supreme Court reversed. It held that warnings informing Powell that he had "the right to talk to a lawyer before answering any of [their] questions" and "the right to use any of [his] rights at any time [he] want[ed] during th[e] interview," were sufficient. The first statement communicated that Powell could consult with a lawyer before answering any particular question, and the second statement confirmed that he could exercise that right while the interrogation was underway. In combination, the two warnings reasonably conveyed Powell’s right to have an attorney present, not only at the outset of interrogation, but at all times.
State v. Richardson, ___ Kan. ___, ___ P.3d ___ (No. 98,572, filed 02/19/10). In a prosecution for felony eluding, the district court erred by failing to provide instructions on the five underlying moving violations and the definition of moving violations. While the instruction given closely tracked PIK Crim 70.09, what constitutes a moving violation is not a simple matter of common knowledge among jurors.
Graham v. Florida, 556 U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 08-7412, filed 5/17/10. Graham was 16 when he committed armed burglary and another crime. Under a plea agreement, the Florida trial court sentenced Graham to probation and withheld adjudication of guilt. Subsequently, the trial court found that Graham had violated the terms of his probation by committing additional crimes (less than 6 months after being put on probation, he was arrested for two armed robberies, criminal restraint and felony fleeing and eluding). The trial court adjudicated Graham guilty of the earlier charges, revoked his probation, and sentenced him to life in prison for the burglary. Because Florida has abolished its parole system, the life sentence left Graham no possibility of release except executive clemency. The Supreme Court struck down defendant's life sentence holding that it violated the Eighth Amendment's Cruel and Unusual Punishment Clause, which does not permit a juvenile offender to be sentenced to life in prison without parole for a nonhomicide crime.
In re D.E.R., ___ Kan. ___, ___ P.3d ___ (No. 101877, filed 03/19/10). Juvenile respondents charged with a felony do not have a right to and adversarial preliminary hearing pursuant to K.S.A. 22-2902. They do, however, have a Fourth Amendment right to have a judicial determination of probable cause as a prerequisite to an extended restraint of liberty.
Carr v. United States, 556 U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 08-1301, filed 06/01/10). The Sex Offender Registration and Notification Act ("SORNA") requires convicted sex offenders to register in any jurisdiction in which the offender resides and imposes criminal penalties on any sex offenders who travel in interstate commerce and knowingly fail to register. Before SORNA was enacted, Thomas Carr, a convicted sex offender, moved to Indiana but failed to register. A federal grand jury indicted Carr for his failure to register under SORNA. Carr appealed to the U.S. Circuit Court of Appeals for the Seventh Circuit, arguing that applying SORNA violated the ex post facto clause as his conviction and travel predated SORNA. The Seventh Circuit held that SORNA did not violate the ex post fact clause because the failure to register occurred after SORNA was enacted. The Supreme Court's reversed, agreeing with Carr's interpretation that the statute does not impose liability unless a person, after becoming subject to SORNA's registration requirements, travels across state lines and then fails to register. That interpretation better accords with §2250(a)'s text, the first element of which can only be satisfied when a person "is required to register under SORNA." §2250(a)(1). That §2250 sets forth the travel requirement in the present tense ("travels") rather than in the past or present perfect ("traveled" or "has traveled") reinforces this conclusion.
Hemi Group L.L.C. v. City of New York, 556 U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 08-969, filed 01/25/10). Hemi Group, based in New Mexico, sold cigarettes online to New York residents but did not collect taxes for possession of cigarettes. The Jenkins Act, 15 U. S. C. §§375-378, requires out-of-state sellers to submit customer information to the States into which they ship cigarettes. The City alleged that Hemi's failure to file the Jenkins Act reports with the State constituted mail and wire fraud, which are defined as "racketeering activit[ies]," 18 U. S. C. §1961(1), subject to enforcement under civil RICO, §1964(c). The District Court dismissed the claims, but the Second Circuit vacated the judgment and remanded.. The United States Supreme Court reversed, concluding that because the City cannot show that it lost tax revenue "by reason of" the alleged RICO violation, it cannot state a RICO claim. A RICO plaintiff must show that a predicate offense "not only was a 'but for' cause of his injury, but was the proximate cause as well." Proximate cause for RICO purposes should be evaluated in light of its common-law foundations; it thus requires "some direct relation between the injury asserted and the injurious conduct alleged." A link that is "too remote," "purely contingent," or "indirec[t]" is insufficient. The city's alleged causation was "purely contingent" and "too remote" to satisfy' the RICO proximate cause standard.
State v. Kerestessy, ___ Kan.App.2d ___, ___ P.3d ____ (No. 101851, filed 06/025/10). A Lyons police officer stoped Kerestessy's car and saw drug paraphernalia in plain view. He arrested Kerestessy and searched his car, finding evidence of methamphetamine manufacturing. Officer went to the home Kerestessy shared with his 10-year live-in baby's mama, who, depending on which version of the facts you believe, consented to search of a school bus on the back of the property where police found a meth lab. The district court suppressed the evidence, finding no actual or apparent authority to consent. The Court of Appeals affirmed. It held that when officers are presented with ambiguous facts related to authority to consent to a search of property, the officer has a duty to investigate further before relying on a consent. In this case, officers never asked who owned the house nor the bus. Baby's mama had never been in the bus, nor did she know what was in it.
United States v. Salazar, ___ F.3d ___ (10th Cir. No. 09-3073, filed 06/22/10). In a firearm possession prosecution, the district court's order suppressing defendant's firearm is reversed where: 1) defendant was not seized until he submitted to the police's show of authority by obeying a command to get out of his truck; and 2) at the time that defendant submitted to the officer's authority, the officer had reasonable suspicion to detain him. Trooper Berner was fueling his vehicle and saw a Ford pickup enter the parking lot directly across the highway at a location known as Tee Pee Junction in Lawrence. The pickup make a U-turn, backed up the entire length of the parking lot, and shut its lights off. The pickup truck parked next to a vehicle belonging to Wright’s Tree Service. Berner though the occupant was up to no good, and drove across the highway toward the parking lot with his headlights off. As Berner approached, the pickup turned on its headlights and began moving forward toward the patrol car. Berner
activated his emergency lights. Both cars stopped. After spotlighting the driver, the pickup started slowly backing up. Berner drove forward in his patrol car. After backing about 20 feet, the pickup stopped, then started to drive around the patrol car. Berner stepped out of his car, drew his firearm, and yelled at Mr. Salazar to stop and get out of the pickup. At that point, Mr. Salazar complied. After arresting the driver for driving without a license, Berner found a loaded .38 caliber revolver with an obliterated serial number laying on the ground. Ammunition and other items found in the pickup connected Salazar to the firearm. Applying the familiar rule from Hodari D, the Circuited held that Salazar was not seized until he stopped, and there was reasonable suspicion to support the seizure at that point. When an officer does not apply physical force to restrain a suspect, a Fourth Amendment seizure occurs only if (a) the officer shows his authority; and (b) the citizen “submit[s] to the assertion of authority.” See Hodari D., 499 U.S. at 625-26 (1991)." While Berner's activation of his flashing lights constituted a show of authority, there was no submission to the assertion of authority until Salazar stopped his pickup after being ordered to at gunpoint. Cf. United States v. Morgan, 936 F.2d 1561 (10th Cir. 1991)(brief submission, followed by flight, to an order to "hold up" after following the suspect for several blocks was held to be a seizure).
City of Ontario v. Quon, 560 U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 08-1332, filed 06/17/10). California SWAT sergeant Jeff Quon was fired for using his departmental pager to transmit sexually explicit messages to his wife. The 9th Circuit held the department violated the officer's Fourth Amendment rights, and also faulted the text-messaging service for turning over transcripts of the messages without the officers' consent. The United States Supreme Court reversed. During the internal affairs investigation (which only looked at on-duty messages), Quon sent or received 456 messages, of which only 57 were work-related. He sent as many as 80 messages on one day, and averaged 28 messages a day, only three of which were work-related. The Court assumed, without deciding, that Quon had a reasonable expectation of privacy, that the employer's review constituted a Fourth Amendment search and that the government employer's search rules applied with equal force to privacy in the electronic sphere. The special needs of the workplace are an exception to the general rule that warrantless searches are presumptively unreasonable. And the search in this case was justified at its inception and the measures adopted were reasonably related to the objectives of the search and were not excessively intrusive in light of the circumstances warranting the search. There is no requirement for an employer to use the least intrusive search method.
State v. McGinnis, 40 Kan.App.2d 620, 193 P.3d 46 (2008), affirmed, ___ Kan. ___ (No. 99217 filed 06/04/10). An Atchison Co. Sheriff's deputy was dispatched to the report of a possible stolen car dumped in/at the Missouri River. While enroute, the deputy observed a car with Missouri tags headed toward the stolen car. The deputy followed the car into a fishing area on a seldom-used dead-end road. In the dead-end area there was sufficient room for vehicles to turn around in the grass parking area and return to the main county road if a person so wished. The deputy pulled up 2-3 car lengths behind the car without activating his emergency lights. The driver was , who was by then out of his car, standing at the river and looking in the direction of the stolen car. As the deputy walked past the stopped vehicle, he noticed a 12-pack of beer in the front seat. The deputy greeted the driver, McGinnis, and had a brief, friendly conversation. The deputy immediately noticed the odor of alcohol on McGinnis, his bloodshot eyes and slurred speech. McGinnis admitted to having two beers. The deputy then requested McGinnis perform field sobriety tests to which McGinnis consented.....and promptly failed. McGinnis was arrested, and his BAC came back .12. McGinnis argued he was stopped without reasonable suspicion at the point in time the deputy pulled up behind McGinnis' car. The Court held that since the deputy did not block McGinnis' car (thus allowing a reasonable person to leave if he so wished), and did not activate the patrol car's red lights (no show of authority), the event began as a consensual encounter and only became a detention once the deputy had seen the beer in the car and the usual indicators of DUI.
United States v. Jermall Campbell, a/k/a "L,"___ F.3d ___ (10th Cir. No. 09-3212, filed 05/10/10). The Wichita gang unit conducted an extensive RICO investigation of Wichita area gang members. Detective Goodwyn served as the affiant on a 120-page Affidavit in Support of a search warrant authorizing a search of defendant's home for evidence of his involvement in the Neighborhood Crip gang. The affidavit detailed defendant's gang-related crimes violence and drug crimes dating back ten years. Although Goodwyn had no personal knowledge about the defendant, details of the affidavit were verified by gang unit members assigned to that particular target of the investigation. Police searched defendant's home and he was eventually convicted of possessing ammunition as a convicted felon. He attacked the warrant in all respects, claiming the information was stale, not based on personal knowledge, and alleged that police made misleading statements and omitted information in the affidavit. The Circuit rejected all challenges, holding that even if the affidavit did not establish probable cause, the Leon good faith doctrine required upholding of the warrant. The Court stated that while there was some failure to communicate all information among gang unit members, that single instance of an arguably negligent breakdown in communication was not recurring or systemic negligence sufficient to overcome the Leon good faith presumption.
United States v. Silva-Arzeta, ___ F.3d ___ (10th Cir. No. 07-5140, filed 04/27/10). Tulsa police were conducting gang surveillance on an apartment complex and saw the defendant arrive and leave an apartment a couple times after a short stay. They stopped him for not wearing a seat belt and arrested him for driving without a license. While handcuffed and with three officers present, he consented to a search of his apartment, where police found methamphetamine and a firearm. Silva-Arzeta contends the evidence should have been suppressed because he did not understand English, he was coerced into consent and he was not given an interpreter. The Circuit disagreed. All officers agreed that defendant appeared to understand and spoke English. Although he was later interviewed by a Spanish-speaking officer, nothing in the record suggested he did not understand what was being asked. The court found consent was valid even though the defendant was in handcuffs and three officers were present. The consent was given in public, only one officer was interacting with defendant; the other two were preparing a tow bill on his car and searching the car. No one drew a weapon, the consent came after a Miranda warning, and there were no promises, trickery or threats of violence. Lastly, while the better practice would have been to get written consent and to tape the Spanish-speaking interview of the defendant, due process does not require best police practices. Holloway, J., dissented, arguing that in view of an allegation of evidence termpering and other extraordinary circumstances, the deficiciencies in law enforcement practices were "very, very troubling," and taken together, amount to plain error.
United States v. Fox, ___ F.3d ___ (10th Cir. No. 09-5131, filed 03/22/10). Tulsa police were conducting surveillence on Fox. Ms. Chiles approached Fox's home as officers were arresting Fox. An officer stopped her in the street, asked her what was going on, then got in the car and directed her to pull in to a nearby convenience store. Chiles did not have a driver's license. While awaiting the return from dispatch, the officer received consent to search the car and found methamphetamine. Chiles then advised she was Fox's wife and lived with him. She consented to a search of his house. Officers found a sawed-off shotgun therein. Fox was charged with being a felon in possession of an illegal weapon. He alleged that Chiles consent was tainted by her illegal detention. The Tenth circuit agreed, finding that the act of directing her to park at the convenience store was a seizure, and the government never articulated any reasonable suspicion to detain Ms. Chiles. Finding no attenuation, the Circuit reversed and held the motion to suppress should have been granted.
United States v. Fisher, ___ F.3d ___ (10th Cir. No. 09-6142, filed 03/10/10). Oklahoma City police received a 911 call of shots fired. They arrived three minutes later and were flagged down by a woman who told them a black male in a gold shirt shot at her and her son. An officer approached a car in the driveway that had its brake lights illuminated and drew down on the occupants and ordered them to get their hands up. Defendant, a passenger in the car, rolled down his window and stuck out his hands, revealing a gold sleeve on his shirt. Police found a gun under his seat. Fisher was a convicted felon. Fisher alleges the officer did not have reasonable suspicion to approach him. The Circuit disagreed, finding the nature of the call, the officer's speedy arrival, and the minimal level of justification required all supported reasonable suspicion. In addition, the court noted it was late a night, a high-crime area and the illuminated brake lights indicated the vehicle was about to leave.
State v. Burdette, ___ Kan.App.2d ___, ___ P.3d ____ (No. 101,288, filed 02/19/10). Having two deputies present during a search conducted by an acting principal did not transform a school search into a law enforcement search requiring probable cause. A teacher saw Buredette acting "really really different" while standing at his locker talking to his friends. The teacher said Burdette appeared to be ill or under the influence of something, and his eyes were "basically shut." The teacher told a counselor, who had Burdette brought to the principal's office. The SRO and a visiting deputy overheard the teacher's conversation with the counselor and also went into the principal's office. The principal told Burdette to empty his pockets. Burdette had two baggies containing marijuana. The court found the search conducted by the school official was justified at its inception because it was reasonably based on a violation of law or school rules, and the search was reasonably related to the circumstances prompting the search.
United States v. Henderson, ___ F.3d ___ (10th Cir. No. 09-8015, filed 02/17/2010). A Wyoming detective determined that the defendant was engaged in exchange of child pornography, but his warrant affidavit failed to disclose (1) who informed him that a computer with the relevant IP address had transferred child pornography; or (2) the method used in this case to establish that a computer at the specified IP address transferred videos with child-pornography associated SHA values. The circuit held the warrant and affidavit were defective, but held that officers acted in objective good faith in executing a warrant and the evidence was thus admissible pursuant to United States v. Leon, 468 U.S. 897, 921-23 (1984).
United States v. Mann, No. 08-3041, 2010 U.S. App. LEXIS 1264 (7th Cir. Decided January 20, 2010). Officer exceeded scope of a search warrant allowing search and seizure of "video tapes, CD's or other digital media, computers, and the contents of said computers, tapes, or other electronic media, to search for images of women in locker rooms or other private areas." Mann, a perverted life guard instructor, installed a hidden video camera in the women's locker room. A woman found it and gave it to police. Mann had captured himself on video installing the camera. Officers seized Mann's computer. Two months later, a detective searched the computer by using a "write blocker" to protect the hard drives from being altered, then used "forensic tool kit" ("FTK") to catalogue the images on the computer into a viewable format. An overview provided by the software also lists files flagged by the software as "KFF (Known File Filter) Alert" and "KFF Ignorable" files. The "KFF Alert" flags those files identifiable from a library of known files previously submitted by law enforcement--most of which are images of child pornography. Officers found stories about child molestation and child pornography. A later search of a hard drive identified much more child pornography as well as two videos from the locker room. Mann alleged that the detective exceeded the scope of the search warrant when he discovered child pornography on the computers and external hard drive. The district court denied the motion to suppress. The Circuit affirmed. It held that using FTK to catalog the files did not exceed the scope of the warrant, reasoning that images of women in locker rooms could be hidden practically anywhere on the computers. However, court took issue with the detectives use of the “KFF Alert” files. They reasoned that once the “KFF Alert” flagged a file, the detective should have known that the file was likely to be child pornography, which was not within the scope of the search warrant. Therefore, the four images obtained by the “KFF Alert” should be suppressed. Fortunately, there was still ample evidence of child pornography to uphold Mann’s conviction. The Court took the time to counsel officers to ensure that their search warrants for digital media (1) particularly describe the things to be seized and (2) that the officers narrowly tailor their searches to be within the scope of the search warrant. The court went on to state:
Although we now hold that his actions were within the scope of the warrant, we emphasize that his failure to stop his search and request a separate warrant for child pornography is troubling…Because Detective Huff was not in a rapidly unfolding situation or searching a location where evidence was likely to move or change, there was no downside to halting the search to obtain a second warrant. Indeed, we find it problematic that nearly two months elapsed before Detective Huff began his search of the Western Digital hard drive despite having found child pornography on the Dell laptop. However, notwithstanding our distaste for the timeline of the investigation, we conclude that the original warrant authorized Detective Huff's search of the external hard drive for images of voyeurism.
United States v. McConnell, ___ F.3d ___ (10th Cir. No. 09-3036, filed 05/19/10). Defendant's prior conviction for felony fleeing and eluding under K.S.A. 8-1568 was properly considered a crime of violence to enhance the defendant's current sentence for possession of a firearm after conviction of a felony.
Kotnour v. City of Overland Park, ___ Kan.App.2d ___, ___ P.3d ____ (No. 102619, filed 05/28/10). John Kotnour, an 18-year veteran of the OPPD, jumped off a 4-5 foot retaining wall while chasing a suspected car thief on September 21, 2007. A few days after jumping off the wall, Kotnour noticed a "twinge" in his right knee. Kotnour did not really think of the jump as an accident, nor did he think of the twinge as an injury. He stated he was not debilitated by the pain and thought it would go away eventually. He did not report the injury to the City until December 4, 2007. The City denied his claim on the grounds Kotnour failed to timely report his injury. An ALJ upheld the denial, but the board reversed. The Board determined that Kotnour had just cause for his delay because he thought the injury would eventually heal itself. The Board granted Kotnour $7,140 for 14 weeks of permanent partial disability benefits and payment for his medical expenses. The Court of Appeals affirmed, finding the holding supported by substantial competent evidence.
Hennagir v. Utah Dep't of Corr., ___ F.3d ___ (10th Cir. No. 08-4087, filed 09/10/09). Plaintiff was a physician's assistant at a Gunnison Utah prison. The state decided that any position having inmate contact required POST certification. Plaintiff could not meet the physical requirements due to conditions including lupus, osteoarthritis, rheumatism, avascular necrosis, Sjögren’ssyndrome, and fibromyalgia. She has had both hips replaced and underwent surgery on her left shoulder. As a result of these maladies, Hennagir is limited in activities such as sitting, bathing, sleeping, lifting, bending and flexing, climbing stairs, running, and biking. The state offered to transfer her to another prison or termination. She filed charges alleging disability discrimination. The Circuit held that a job function that is rarely required in the normal course of an employee's duties can be essential when the potential consequences of employing an individual who is unable to perform the function are sufficiently severe. Noting the potential consequences of an inmate attack are incredibly severe, it is reasonable to require employees who have direct contact with inmates to undergo training on responding to these dangerous scenarios. The Circuit also held that it is unreasonable for an employee to demand identical job duties less the disputed essential job requirement, regardless of the label given to the proposed accommodation.
http://ca10.washburnlaw.edu/cases/2009/09/08-4087.pdf
Iverson v. City of Shawnee, Kansas, ___ F.3d ___ (10th Cir. No. 08-3264, filed 06/17/09, unpublished). Plaintiff, a police officer injured her back and was no longer able to qualify with her weapon. She alleges the City of Shawnee discriminated against her in violation of the ADA by not assigning her to a vacant position and by failing to engage in an interactive process to accommodate her disability. The district court held plaintiff failed her burden of proof to show that a vacant position existed. The circuit affirmed.
Gross v. FBI Financial Services, 556 U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 08-441, filed 06/18/09). The ADEA does not authorize a "mixed motive" age discrimination claim. A disparate treatment claim required proof by a preponderance of the evidence that age was the but-for cause of the adverse employment decision. This burden is different than the burden-shifting analysis in Title VII cases. The burden does not shift to the employer to show that it would have taken the action regardless of age.
http://www.supremecourtus.gov/opinions/08pdf/08-441.pdf
United States v. Charles, ___ F.3d ___ (10th Cir. No. 08-3212, filed August 11, 2009). Topeka police suspected open air drug sales at the Oak Tree Square Apartments. Residents would routinely scramble up the stairs when police approached, so Hannan and Gardner placed themselves on the second floor and would intercept folks that fled. Ronnie Charles decided to flee upstairs and ran into Gardner and Hannan. Charles pushed Garnder and dragged him down some stairs before he was subdued. He also had a gun in his waistband, and was a convicted felon. Charles alleged that Gardner just tackled him and searched him. Charles alleged he was illegally detained. The district court found the officer's version of events more credible and denied the motion to suppress. The Circuit affirmed. However, it vacated Charles sentence and remanded for resentencing because his prior escape from custody was not a crime of violence for purposes of USSG § 4B1.1(a).
http://ca10.washburnlaw.edu/cases/2009/08/08-3212.pdf
State v. Cox, ___ Kan.App.2d ___, ___ P.3d ____ (No. 99943, filed 04/24/09). A Yates Center officer stopped Cox's vehicle for a window tint violation. When Cox could not produce proof of valid insurance the officer arrested him, then found methamphetamine on his person in a search incident to arrest. Cox alleged that K.S.A. 40-3104 only allowed issuance of a citation. The Court of Appeals disagreed.
http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2009/20090424/99943.htm
Bryan v. McPherson, ___ F.3d ___ (9th Cir. No. 08-55622, filed 12/29/09). In a 42 U.S.C. section 1983 action based on defendant-officer's use of a taser on plaintiff at a traffic stop, denial of summary judgment based on qualified immunity is affirmed where, viewing the circumstances in the light most favorable to plaintiff, defendant's use of the taser was unconstitutionally excessive and a violation of plaintiff's clearly established rights.
Ellis v. Ogden City, __F.3d __, (10th Cir. No. 08-4166, filed 12/17/09). A city police struck and killed an innocent bystander while pursuing a known gang member at high speeds through residential areas. Plaintiff alleged that the officers had been ordered to stop the chase due to the public safety concerns of supervisors, but the officers continued it on their own initiative. The lower court dismissed the complaint because it did not include an express allegation that the officers subjectively intended to cause harm to the deceased bystander. The appellate court agreed and affirmed the dismissal. The court reasoned that prior Supreme Court precedent required a federal civil rights plaintiff to establish that pursuing officers "acted with an intent to either physically harm the suspect or worsen his legal plight." The appellate panel concluded that an intent to injure an innocent bystander was also a requirement where the plaintiff was not the subject of the pursuit. The court rejected plaintiff's reliance on earlier precedent - no longer good law - that would impose liability where pursuing officers "disregard a known danger." The appellate court concluded that "the plaintiff must establish not that the officers acted with reckless indifference but that the officers intended to cause harm." General allegations of obvious and avoidable risk will not suffice to meet this test.
Lovitt v. Board of Shawnee County Commissioners, ___ Kan.App.2d ___, ___ P.3d ____ (No. 101,159, filed 12/18/09). Plaintiff claimed intangible damages due to the refusal of a dispatcher to send help in response to a 911 emergency call. Plaintiff was a passenger in a motor vehicle operated by his mother, who suffered a seizure and lost control, resulting in a non-injury accident. When the minor plaintiff reported the accident, the dispatcher mistakenly concluded that it was a prank call and refused to send aid. Within less than a minute an adult passerby made a separate call to report the accident, and emergency responders were dispatched in response to this second call. Emotional distress damages were sought under the theory that the refusal to send help met the requirements for the tort of outrage or negligent infliction of emotional distress under Kansas law. The lower court granted summary judgment for the defendant, reasoning that the public duty doctrine and statutory immunity protected the dispatcher and her employer. The appellate court affirmed, holding that any duty to respond to 911 emergency calls is a duty owed to the general public, not an actionable tort duty owed to individuals, at least in cases where there is no proof of detrimental reliance on a promise to dispatch help. In addition, the discretion inherent in the dispatcher's decision to identify the call as a suspected prank was enough to trigger statutory tort immunity. The opinion also reaffirmed the unavailability of a cause of action for purely emotional injuries based on a negligence theory under Kansas common law. The facts did not establish the severe emotional distress required for a recovery of damages under the tort of outrage.
Herrera v. City of Albuquerque, ___ F.3d ___ (10th Cir. No. 09-2010, filed 12/14/09). Plaintiff sued a police officer for a § 1983 violation alleging she was arrested without probable cause to believe child abuse by endangerment occurred. The officer responded to a domestic disturbance of which plaintiff was a victim. Plaintiff was 16 years old and had a three-year old son. Plaintiff had been drinking when the officer responded. The house was filthy and had razors, food, cigarette butts and clothes on the floor. The bathtub was full of black water and emitting a foul odor. There was also a vicious Pit Bull chained in the backyard that had access to the kitchen. The Circuit held the New Mexico law at issue was not clearly established as to what constituted abuse by endangerment at the time of the arrest in 2005, and did not become so until 2009. Accordingly, it affirmed summary judgment on qualified immunity grounds for the officer.
Bowling v. Rector, ___ F.3d ___ (10th Cir. No. 07-6284, filed 10/26/09). In a 42 U.S.C. section 1983 action alleging an unlawful search, denial of summary judgment for defendant based on qualified immunity is affirmed in part where defendant's alleged conduct in exceeding the scope of the search warrant violated plaintiff's clearly established right under the Fourth Amendment. However, the order is reversed in part where: 1) defendant's alleged violation of Oklahoma law was not, without more, significantly relevant to the Fourth Amendment analysis; and 2) a search warrant was constitutionally valid. A bank suspected that Bowling was selling cattle in which the bank had a security interest and not accounting for the proceeds. Bowling was allegedly doing so in his wife and son's name. A special ranger with the Oklahoma State Bureau of Investigations with authority to investigate livestock larcenies swore out an affidavit and obtained a warrant for Bowling's property. The special ranger and others executed the warrant, and seized bank records and other items named in the warrant, as well as some marijuana that was not named in the warrant. Bowling sued Rector alleging he exceeded his statutory authority. The Circuit held that even if Rector violated state law by exceeding his statutory authority, the warrant affidavit established probable cause and Rector should have been granted immunity on that claim. It affirmed on the reasonableness in execution of the warrant and remanded for further proceedings.
http://ca10.washburnlaw.edu/cases/2009/10/07-6284.pdf
Fisher v. City of Las Cruces, ___ F.3d ___ (10th Cir. No. 07-2294, filed 10/19/09). Plaintiff successfully alleged more than de minimis injury sufficient to support an excessive force by handcuffing claim. Las Cruces police responded to a shots fired, possible suicide call. Robert Fisher took at least two doses of Xanax, an anti-anxiety prescription medication, and the better part of a pint of vodka. He passed out in his backyard. When he awoke, he began to hallucinate that a large animal was threatening him. Fisher ran inside, retrieved a 9 millimeter handgun, and returned to the backyard to confront the illusion. Staggering and delirious, Fisher instead accidentally shot himself in the stomach. As he fell to his knees, his gun discharged again and a second bullet struck him in the left bicep. Fisher’s wife, Mary Fisher, was inside the house and heard Fisher’s cries for help. She called 911. While talking to the operator, Mary Fisher walked outside, apprehended the gun, and placed it in the kitchen. Responding officers knew that Mary had retrieved the gun. They entered the backyard with guns drawn, and patted down Robert, finding no other weapons. His wounds were clearly visible. One officer began giving Robert medical assistance, while the other went inside and retrieved the weapon. Upon returning to the yard, he ordered Robert to lay on his stomach and put his hands behind his back. Robert protested, but the officer placed his knee on Robert's back and forcefully applied the handcuffs. Robert testified that doing so caused him "excruciating pain." The district court granted the officers summary judgment based on qualified immunity. The Circuit reversed, finding the force excessive, the law clearly established, and that Robert's petition could be fairly read to establish more than a de minimis injury.
http://ca10.washburnlaw.edu/cases/2009/10/07-2294.pdf
Adams v. Board of Sedgwick County Comm'rs., ___ Kan. ___, 214 P.3d 1173 (No. 99,195, filed 09/04/09). Defendant ran an outpatient mental health center (ComCare) tasked with treatment and supervision of Adam Cummins after his discharge from involuntary commitment at Osawatomie. Adam frequently became non-compliant with his medication and would become violent. The mental health center allowed an outpatient treatment order to expire despite Adam's noncompliance with his medications. In September 1999, ComCare closed Adam's case due to refusal of services and noncompliance. In April 2000, Adam's condition deteriorated and he began beating his mother with a hammer, causing his daughter to shoot and kill him. Mother and daughter sued the county for negligence. The Supreme Court held the county owed no duty to Mother and Daughter because no special relationship existed under Restatement, Torts § 315 or 319, finding outpatient treatment does not give the kind of control required to create a special duty. Therefore, it did not consider whether tort claims exceptions applied. It so held despite ComCare's failure to report noncompliance with the court order as required by K.S.A. 59-2967(e), finding the statute creates a duty to the public but not to plaintiffs.
http://www.kscourts.org/Cases-and-Opinions/opinions/supct/2009/20090904/99195.htm
Swanson v. The Town of Mountain View, 577 F.3d 1196 (10th Cir. 2009). Mountain View officers stopped two vehicles for traffic violations that actually occurred in the adjoining City of Denver. The Circuit granted the officers qualified immunity, because a reasonable police officer would not have known in 2006 that extra-jurisdictional, but within the same state, traffic stops constituted a violation of clearly established Fourth Amendment law when there is no dispute that the officers observed traffic violations before making the stops.
http://ca10.washburnlaw.edu/cases/2009/08/08-1105.pdf
Manzanares v. Higdon, ___ F.3d ___ (10th Cir. No. 07-2156, filed 08/10/09). Albuquerque police were working a rape case. Danny Manzanares had socialized with the suspect early in the evening on the date of the rape. Albuquerque police went to Manzanares's house at about 5:00 a.m. and sought and received consent to enter. Manzanares knew the suspect as "Rick," and said they worked together, but Manzanares said he did not know Rick's last name. At some point, Manzanares asked officers to leave. They didn't, and Manzanares became agitated. Officers then handcuffed him. At one point officers removed the handcuffs while awaiting additional investigators. At about 8:00 a.m., Manzanares admitted he knew the suspect's full name, and agreed to guide police to the suspect's house. Manzanares was cuffed again and detained in the back seat of a police car for at least three hours. Officers said their treatment of Manzanares was justified because they had reasonable suspicion or probable cause to believe Manzanares was a witness and was obstructing their investigation, and because they reasonably feared that Manzanares would attempt to assist "Rick." During trial, the parties filed cross-motions for judgement as a matter of law. The trial court denied them and the jury returned a verdict for the officer defendants. The 10th Circuit reversed, holding that officers violated Manzanares's Fourth Amendment rights by refusing to leave Manzaneres's home once consent was revoked, and by arresting him without probable cause based solely on a hunch that "Manzanares knew more than he was willing to say.". Finding the law on both constitutional violations was clearly established, the court remanded with instructions to grant Manzanares's motion for judgement as a matter of law and to conduct a new trial on damages.
http://ca10.washburnlaw.edu/cases/2009/08/07-2156.pdf
Sherouse v. Ratchner, et al., ___ F.3d ___ (10th Cir. No. 08-2105, filed 07/31/09). A fourteen year old African-American girl and a thirteen year old Hispanic girl sued Albuquerque police (AP) for hauling them to the police station. AP were investigating robberies described as being committed by a black female, 5'2" and 110 to 120 pounds, some describing her as 17, others saying she was in her 20s. Around the same time, a neighbor called police about the two plaintiffs, who were sitting on a curb near an apartment complex near one of the robberies. Determining the black female matched the robber's description, an AP officer handcuffed her and put her into the back of his police car. Witnesses were brought to the scene, and some may have identified the black female as the robber. None identified the Hispanic girl. AP then transported both girls to the police station, and later released them. The girls sued, and the jury found for the defendants. The girls appealed, claiming jury instructions were improper. The Circuit affirmed on the jury instructions, but reversed the verdict as to the Hispanic girl, finding no probable cause for her arrest.
http://ca10.washburnlaw.edu/cases/2009/07/08-2105.pdf
Cordova v. Aragon, ___ F.3d ___ (10th Cir. No. 08-1222, filed 06/17/09). In a 42 U.S.C. section 1983 action alleging excessive force by Defendant officers, summary judgment for Defendants based on qualified immunity is affirmed in part, where there was no genuine issue of material fact as to whether a policy of the city was the moving force behind any violation; but reversed in part where, when an officer employs such a level of force that death is nearly certain, he must do so based on more than the general dangers posed by reckless driving.
Cassady v. Goering, ___ F.3d ___ (10th Cir. No. 07-1092, filed 05/28/09). A warrant allowing search of an entire farm and seizure of "any evidence of criminal activity," is a general warrant proscribed by the Fourth Amendment, and a Sheriff responsible for the drafting and executing of such a warrant is not entitled to qualified immunity. Two Colorado grain farmers became involved in a dispute over grain stored on defendant's farm. Cassady attempted to cut off the grain owner's (Queen) right of access to the grain. A fight ensued. Queen apparently won the fight. When police arrived, Queen told them Cassady had marijuana plants on his property. Queen said he saw them growing in a quonset hut. Despite the lack of physical injuries to Queen, Sheriff Goering arrested Cassady for battery and directed a deputy to get a search warrant. He also allowed Queen to remove the disputed grain. The deputy had never drafted a narcotics search warrant. The warrant allowed a search of the entire farm for, among other things, "any and all narcotics," and "any and all illegal contraband," and "all other evidence of criminal activity." The evidence established the officers really trashed the place while serving the warrant. The evidence was suppressed in the criminal action against Cassady. Cassady sued Goering for violating his Fourth Amendment rights. The case was tried to a jury, which awarded Cassday judgment. However the verdict was set aside due to an "prejudicially low damages award." Goering appealed from denial of qualified immunity. The Circuit affirmed denial of qualified immunity due to the general warrant holding. McConnell wrote a 21 and ½ page dissent stating the severability doctrine should have been applied to save the warrant.
http://ca10.washburnlaw.edu/cases/2009/05/07-1092.pdf
Poolaw v. Marcantel,___ F.3d ___ (10th Cir. No. 07-2254, filed 05/07/09). New Mexico police officers violated the Fourth Amendment and are not entitled to qualified immunity for an illegal search of a police murderer's in-laws' home. A familial relationship is insufficiently particularized to justify invading an individual’s reasonable expectation of privacy. There were insufficient facts to support a finding of either probable cause to search the property or reasonable suspicion to detain the suspect's sister-in-law.
http://ca10.washburnlaw.edu/cases/2009/05/07-2254.pdf
Pearson v. Callahan, 555 U.S. ___, 129 S.Ct. 808, ___ L.Ed.3d ___ (No. 07-751, filed 01/21/09). The case stems from a police raid in Filmore, Utah on Afton Callahan's home in 2002. After an informant entered the home and bought illegal drugs, police raided the house without a warrant. Applying the Saucier v. Katz, 533 U. S. 194 (2001), test, the 10th U.S. Circuit Court of Appeals found the raid was unconstitutional, and the rights violated were clearly established. The Supreme Court reversed, finding the law was not clearly established on "consent once removed." It pointed out that three federal courts and two state supreme courts had approved of consent once removed searches, and the officers in this case were entitled to rely on those decisions even though its own circuit had yet to address the issue. Slip opn. at 19. Additionally, the Court declines to overrule Saucier, but modifies it to say that while its' two-step sequence is often appropriate, "it should no longer be regarded as mandatory." Slip opn. at 10. The Court went on to explain that judges should be able to decide which of the two prongs should be addressed first in light of the circumstances at hand in a particular case. The 2001 decision in Saucier established a two-step test for deciding whether police deserve immunity from lawsuits claiming they violated someone's constitutional rights. First, it must be established that the claimant's constitutional rights were violated. If so, the next question is whether that right was clearly established -- in other words, well-enough known that a reasonable officer should have known what it was. Saucier had been criticized on the basis that it departs from the general rule of constitutional question avoidance - which means that if a case can be decided on a basis other than a constitutional pronouncement, it should be.
http://supct.law.cornell.edu/supct/html/07-751.ZO.html
Cuthbertson v. Kansas Department of Revenue, ___ Kan.App.2d ___, ___ P.3d ____ (No. 101,494, filed 12/04/09). An officer arrested Cuthbertson for DUI. Cuthbertson had a CDL, but was not driving a commercial vehicle at the time of his arrest. The officer gave him the standard implied consent advisories. Prior to taking and failing the test, Cuthbertson asked what effect a test failure would have on his CDL. The officer misrepresented that Cuthbertson CDL would be suspended for a year, but in actuality it was a second failure or refusal so it led to a lifetime suspension of Cuthbertson's CDL. Cuthbertson claimed that the incorrect statement about his CDL should result in reinstatement. The Court held that while the advice given by the officer was incorrect, a CDL advisory pursuant to K.S.A. 8-2,145(a) was not required and Cuthbertson could show no prejudice from the mistake since he had already decided to take the test, and even if he hadn't, the result would have been the same.
Rivera v. Kansas Department of Revenue, ___ Kan.App.2d ___, ___ P.3d ____ (No. 100,279, filed 05/08/09). The district court erred in dismissing Rivera's petition for review of the KDOR's suspension order. The pleadings substantially complied with K.S.A. 77-614, and although the petition raised several issues outside the scope of the administrative hearing, the district court should have considered the petition, applying Kingsley v. Kansas Dept. of Revenue, 288 Kan. ___, 204 P.3d 562 (2009), and Martin v. Kansas Dept. of Revenue, 285 Kan. 625, 176 P.3d 938 (2008).
http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2009/20090508/100279.htm
Mitchell v. Kansas Department of Revenue, ___ Kan.App.2d ___, ___ P.3d ____ (No. 99,372, filed 02/13/09). In a driver's license suspension hearing, the government could not show substantial compliance with the KDHE breath testing protocol where they left the subject to be tested alone in a restroom for 2-4 minutes and allowed them to drink water during the deprivation period. The drunk blew a 0.194.
http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2009/20090213/99372.htm
Domestic Violence
State v. Curreri, ___ Kan.App.2d ___, ___ P.3d ____ (No. 100,299, filed 08/21/09). The Kansas domestic battery statute, K.S.A. 21-3412a, when applied to unmarried cohabitating couples, is not unconstitutional due to a conflict with Kansas' Defense of Marriage Amendment to the Kansas Constitution, art. 15, § 16 (2008 Supp.).
http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2009/20090821/100299.htm
State v. Perez-Rivera, ___ Kan.App.2d ___, ___ P.3d ____ (No. 99,380, filed 03/27/2009). Participants being over the age of 18 is one of the elements of domestic battery. Where the state failed to offer any proof of the victim's age, a domestic battery conviction must be reversed. The circumstantial evidence defendant and the victim had been married 2.5 years and married in Las Vegas was insufficient because there was no proof that jurors were aware that the age of consent to marry in Nevada is 16, and for the jury to draw that inference and to allow such would be improperly allowing a presumption based upon a presumption or an inference upon an inference.
http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2009/20090327/99380.htm
Yeager v. United States, 555 U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 08-67, filed 06/18/09). In 2004, the United States charged three senior executives of Enron Corporation with multiple counts of money laundering, securities fraud, wire fraud, and insider trading. At trial, the jury acquitted the defendants on several charges, but could not agree on a verdict for the rest. The United States then recharged the defendants with several of the crimes on which the jury in the previous trial failed to reach a verdict. The defendants moved to dismiss the charges, arguing that collateral estoppel prevented the government from retrying them. The defendants based their motion on the fact that the jury acquitted the defendants on counts that shared common factual elements with the charges the jury failed to reach a verdict on. The district court denied the defendants' motion, and the Fifth Circuit upheld the district court's decision. The Supreme Court held that an apparent inconsistency between a jury’s verdict of acquittal on some counts and its failure to return a verdict on other counts does not affect the acquittals’ preclusive force under the Double Jeopardy Clause.http://topics.law.cornell.edu/supct/cert/08-67
Abuelhawa v. United States, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 08-192, filed 05/26/09). Salman Khade Abuelhawa was convicted on felony drug charges under 21 U.S.C. § 843(b) for facilitating a drug deal. Abuelhawa bought a small amount of cocaine for personal use, and set up the transaction with his dealer using his cellular phone. The Fourth Circuit found that 21 U.S.C. § 843(b) applied to anyone that facilitated a drug offense with any communication device, regardless of whether the person was the drug dealer or the drug purchaser. The Supreme Court held that use of a cell phone or other communication device does not elevate a misdemeanor drug possession to a felony charge.
State v. Surowski, ___ Kan.App.2d ___, ___ P.3d ____ (No. 100,121, filed 07/24/2009). Possession of Lortab® (Hydrocodone), a narcotic, is a felony not a misdemeanor, therefore the district court improperly dismissed the charge against the defendant.
http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2009/20090717/100121.htm
State v. Beaver, ___ Kan.App.2d ___, ___ P.3d ____ (No. 100,241, filed 02/13/09). Police served a drug warrant at a house in Clay Center. Beaver just happened to be there as a social guest, and was detained at the back door, three to four feet from a cluttered kitchen table that contained some methamphetamine. There was no evidence that Beaver knew the drugs were there or intended to control them. The Court of Appeals affirmed dismissal of the charges, holding there was insufficient evidence to show constructive possession of the drugs.
http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2009/20090213/100241.htm
State v. Stegman, 41 Kan. App.2d 568, 203 P.3d 52 (2009). "Medical assistant was not qualified to draw blood at request of arresting officer, and thus, blood test results were inadmissible in trial for driving under influence (DUI), where stipulated facts did not show that assistant received training required pursuant to statute listing persons authorized to draw blood or that applicable medical protocol authorized assistant to perform blood withdrawal, and assistant was, by her own admission, not medical technician or phlebotomist." In response, the legislature amended K.S.A. 8-1001(c) to include the following: (1) A person licensed to practice medicine and surgery, licensed as a physician's assistant, or a person acting under the direction of any such licensed person; (2) a registered nurse or a licensed practical nurse; (3) any qualified medical technician, including, but not limited to, an emergency medical technician-intermediate or mobile intensive care technician, as those terms are defined in K.S.A. 65-6112, and amendments thereto, authorized by medical protocol or (4) a phlebotomist." So, unless it can be shown that the individual drawing blood meets the technician requirements listed in K.S.A. 65-6112 or is an actual phlebotomist, it should be a R.N. obtaining the blood sample.
Grabner v. Kansas Dept. of Revenue,___ P.3d ____ (table), 2009 WL 2030383 (unpublished, filed 07/10/09). In a case challenging lack of probable cause to arrest for DUI, Defendant's attempts to have the court focus on signs of impairment that he did not exhibit, while glossing over those signs of impairment he did exhibit, is unavailing. "This is the attempt to sustain a factual proposition merely by negative evidence. The fact that Grabner did not exhibit some signs of impairment of his physical and mental faculties does not imply that he did not exhibit other known psychomotor signs of impairment." See also United States v. Williams, 403 F.3d 1203, 1207 (10th Cir. 2005) (no need for officer to investigate alleged innocent explanations for defendant's actions); State v. Scott, 203 P.3d 1281, 2009 WL 929102 (table, unpublished)(no need to dally in the "fallacy of negative proof."); City of Great Bend v. Rowlands, 203 P.3d 1281, 2009 WL 929131 (table, unpublished)(same). [See also Phillips v. James, 422 F.3d 1075, 1080)(Fourth amendment does not require officers to use the least restrictive means to investigate a threat].
State v. Hardesty, ___ Kan.App.2d ___, ___ P.3d ____ (No. 100571, filed 08/14/2009). An officer saw Hardesty leave a bar, cross five lanes of traffic, and make an improper turn. The officer stopped Hardesty and found an open container, an open cooler with additional beers, a strong smell of an alcoholic beverage coming from the defendant, bloodshot eyes, slurred speech, an admission to drinking and poor performance on field sobriety tests. Hardesty also presented his deceased brother's ID card as his own. The Court of Appeals affirmed convictions for identity theft, DUI, driving while habitual, refusing a PBT and improper turn. Since the refusal of the PBT charge was tried to the court and not the jury, the court erred in allowing the prosecutor to present the refusal to the jury, but the error was harmless due to other overwhelming evidence of DUI.
http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2009/20090814/100571.htm
State v. Bradley, ___ Kan.App.2d ___, ___ P.3d ____ (No. 100,990, filed 06/12/09). Bradley's SUV collided with a semitrailer truck on I-70 during a snowstorm. The investigating deputy from Ellsworth County noted that Bradley smelled of an alcoholic beverage, had bloodshot eyes and fell out of her SUV when she opened the door. He asked her if she would take a breath test without giving her an implied consent advisory (ICA). She refused. After he finished at the scene, he transported Bradley to the law enforcement center, gave her the ICA, and again asked if she would take a breath test. She again refused. Bradley argued both refusals should be suppressed due to the deputy's failure to give an ICA before requesting the first test. The district court agreed and suppressed both refusals. The Court of Appeals affirmed as to the first refusal, but reversed as to the second, finding the ICA was given before the test was administered as required by K.S.A. 8-1001.
http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2009/20090612/100990.htm
State v. Cott, ___ Kan. ___, ___ P.3d ___ (No. 97,955, filed 05/01/09). Trooper Wright observed Cott commit several traffic violations. He stopped her and subsequently arrested her for DUI. At the time of the stop, Cott's 4-year-old son was in the car with her, asleep in the front seat possibly in a seat belt, but not a car seat. Defendant tested 0.147. At the conclusion of the preliminary hearing, defense attorney Shepherd argued that the 30-day enhancement for having a child in the car in K.S.A. 2005 Supp. 8-1567(h) made the two charges against the defendant, DUI and endangering a child, multiplicitous. Thies agreed. The Court of Appeals and the Supreme Court reversed, holding that K.S.A. 2005 Supp. 8-1567(h) and K.S.A. 2005 Supp. 21-3608a(a)(1) are aimed at preventing different types of behavior and there is no evident legislative intent to preclude the State from holding the defendant responsible under both statutes when facts are present to support both crimes.
http://www.kscourts.org/Cases-and-Opinions/opinions/supct/2009/20090501/97955.htm
State v. Shadden, 40 Kan. App. 2d 1103, 199 P.3d 167 (2009). Reversed. See Shadden above.. Officers are not qualified to testify about the reliability of the NHTSA standards and FSTs performance in terms of percentages of guilt.
http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2009/20090116/97457.htm
State v. Bratton, ___ Kan.App.2d ___, ___ P.3d ____ (No. ____, filed 12/04/09 unpublished), 2009 WL 4639504. The Court of Appeals rejected the defendant's outrageous government conduct and entrapment defenses in an internet sting performed by Overland Park detectives. Donald Bratton began corresponding over the internet on a "sex" website with an under-cover Overland Park police detective who was posing as a woman interested in hooking up with men on the internet. The detective had a membership on the sex site that only allowed her to respond to contact with other website members, not initiate it. Bratton made contact with the detective about 20 times over the course of a three month period. They exchanged emails, some but not all of which were sexually suggestive. After they arranged a date to meet in person, the detective told Bratton, "I don’t remember if I told you or not, but my donation amount is 150 Washingtons for an hour of non-stop entertainment and fun." This was the first discussion of money in exchange for sex. Within 2 hours of the email, Bratton responded that he felt the donation sounded reasonable and he couldn't wait for them to meet. They arranged the date, time and place of their rendezvous and continued to discuss it over several more emails. When Bratton knocked on the hotel room door, the detective answered it, still posing as the "Belinda" that Bratton had been corresponding with on the internet. She asked if he had the money with him. He put it out on the table , they discussed condoms, and he was arrested. Bratton was charged and convicted of attempting to patronize a prostitute. Bratton first argued the "outrageous government conduct defense," which has been recognized in Kansas although it has never prevailed in a case. It states that “governmental participation in a criminal enterprise reaches an intolerable degree when it constitutes a denial of fundamental fairness, shocking to the universal sense of justice, in violation of the due process clause of the 5th Amendment to the U.S. Constitution." The factors used to identify outrageous government conduct are:
1. the type of activity under investigation;
2. whether the government instigates the criminal activity in question or whether it infiltrates a preexisting criminal enterprise;
3. whether the government directs or controls the activities or merely acquiesces in their criminality; and
4. the causal relationship between the challenged government conduct and the commission of the acts for which the defendant stands convicted.
The outrageous government conduct defense is an offshoot of the entrapment defense and intent and predisposition to commit the crime plays a role in the analysis. These are factual determinations for the fact finder. The Court of Appeals agreed that the predisposition analysis needed to focus on Bratton’s intent and expectations at the time he began corresponding with "Belinda." It opined that to measure predisposition later, after a government had engaged in outrageous conduct, could reward the government for any outrageous conduct that succeeded in creating a predisposition to commit a crime. The defendant argued that the mere fact that he was on a sex website and had contact with "Belinda" could not lead a rational factfinder to conclude he had a predisposition to patronize prostitutes on the site. However, the Court of Appeals found his use of the site to meet women to have sex with was material in the analysis. The very first cursory mention of prostitution by "Belinda" resulted in his prompt agreement to the terms. After money was discussed, he continued to push for a specific date and time. There was no hesitancy or reluctance or undue persuasion. Therefore, it held there was sufficient evidence for the trier of fact, the district court judge, to conclude that Bratton was predisposed to such behavior. Bratton also argued "entrapment." The entrapment defense is codified in Kansas at K.S.A. §21-3210 and states that "A person is not guilty of a crime if his criminal conduct was induced or solicited by a public officer...for the purpose of obtaining evidence to prosecute such person, unless the public officer... merely afforded an opportunity or facility for committing the crime in furtherance of a criminal purpose originated by such person or co-conspirator." Once inducement by the government has been proven, the defendant’s previous intent or predisposition to commit the crime must be shown to rebut the entrapment defense. The Court of Appeals found that based on the facts of the case, a rational fact finder could find that Bratton was pre-disposed to hiring prostitutes for sex. The OPPD merely afforded the opportunity.
United States v. Robinson, ___ F.3d ___ (10th Cir. No. 08-3120, filed 10/20/09). Robinson was convicted and sentenced to 33 months in prison for being a felon in possession of a firearm after selling a gun to a confidential informant (“CI”). Six days before Robinson’s trial, the government’s star witness—the CI who purchased the gun from Robinson—was involuntarily committed to Osawatomie. The district court reviewed the CI’s medical files in camera but refused defense counsel access to them. It also precluded defense counsel from asking the CI any questions about his mental health history or his use of prescription medications. The Circuit ruled that refusal to provide Robinson access to the CI’s medical records contravened due process and that limitations on cross-examination of the CI violated the Sixth Amendment. The CI testified he only had "a little bit" of a drug problem and was not "regularly" violating his agreement with the ATF by using drugs. He also claimed his memory lapses were due solely to the passage of time. The medical records showed that the CI had been a heavy drug user since 2000 and had recently been abusing alcohol, cannibis, opioids, benzodiazepine, Valium, Klonopin, Darvocet, and Hydrocodone. The medical records also contain admissions by the CI that he had smoked a half-pound of marijuana in a single day shortly before trial and that he had been smoking up to a pound of marijuana per week. The jury would also have heard that the CI had a "long history of mental illness" starting in 2000, which included auditory hallucinations, seeing “things out through the window that are not really there,” and “hearing voices telling him to do thing[s].” The Circuit concluded that if the jury had known these things, it might have rejected the CI's testimony and resulted in Robinson's acquittal. Notably, although the CI carried a digital recorder during the controlled buy of the weapon, the recording was "low-quality, interspersed with static, and revealed few details of the events that took place inside Robinson’s home." Even the government admitted it had "limited evidentiary value."
http://ca10.washburnlaw.edu/cases/2009/10/08-3120.pdf
State v. Laturner, ___ Kan. ___, ___ P.3d ___ (No. 98,086, filed 10/09/09, affirming in part and reversing in part 38 Kan. App. 2d 193, 197, 163 P.3d 367 (2007). Lab test result showing that a substance is cocaine is testimonial under Crawford. The third and fourth sentences of K.S.A. 22-3437(3) are unconstitutional.
http://www.kscourts.org/Cases-and-Opinions/opinions/SupCt/2009/20091009/96086.pdf
State v. Leshay, ___ Kan. ___, ___ P.3d ___ (No. 99,725, filed 08/28/09). The district court dismissed possession of cocaine charges against Leshay because the KBI chemist was not present to testify at the preliminary hearing. The Supreme Court reversed, holding that K.S.A. 22-2902a, which allows for admission of laboratory reports at preliminary examinations, does not violate a Defendant's rights to confrontation under Crawford. Defendants at preliminary hearing do not have a full panoply of constitutional rights that are applicable at trial.
http://www.kscourts.org/Cases-and-Opinions/opinions/supct/2009/20090828/99725.htm
United States v. Collins, ___ F.3d ___ (10th Cir. No. 08-3119, filed 08/04/09). Admission of all detectives questions to defendant during an interview violated the hearsay rule, but the admission was harmless error, and the judge gave a curative instruction saying that the questions were only admitted to provide context and only the defendant's statements could be considered as evidence.
http://ca10.washburnlaw.edu/cases/2009/08/08-3119.pdf
Melendez-Diaz v. Massachusetts, 557 U.S. ___, 129 S.Ct. 2527, ___ L.Ed.3d ___, (No. 07-591, filed 06/25/09). A state forensic analyst's laboratory report is testimonial and subject to Crawford. [NOTE: Kansas has already ruled that it is testimonial. State v. Laturner, 38 Kan. App. 2d 193, 197, 163 P.3d 367 (2007).] Police stopped Luis Melendez-Diaz outside of a Boston area K-Mart on suspicion of drug possession. He was arrested with two other individuals and driven to the police station. On the way to the station, the police observed Melendez-Diaz and one of his cohorts making unusual movements in the back seat. They later conducted a search of the cruiser and found nineteen plastic bags containing a powdery substance, and $320 on the floor of the vehicle. The Massachusetts Department of Public Health's State Laboratory Institute tested the bags and found that they contained cocaine. A jury found Melendez-Diaz guilty of distributing and trafficking in cocaine. On appeal, Melendez-Diaz argued that the lab reports were "testimonial" in nature and that the Confrontation Clause of the Sixth Amendment required that he be allowed to cross-examine the analysts who prepared them. Massachusetts argued that the drug analysis reports were not testimonial within the meaning of the Confrontation Clause. Based on this ruling, analysts will be required to give in-court testimony about the weight and composition of drugs used as evidence in criminal trials.
http://www.law.cornell.edu/supct/pdf/07-591P.ZO
District Attorney's Office v. Osborne, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 08-6, filed 06/18/09). A defendant has no constitutional right to test, years after the fact, genetic evidence found at the crime scene. William Osborne, was convicted of rape, kidnapping and assault in an attack on a prostitute in 1993. Osborne raped the victim at gunpoint, beat her with an axe handle, shot her in the head and left her for dead in a snow bank near the Anchorage International Airport. Osborne admitted his guilt under oath to the parole board in 2004. Another man also convicted in the attack has repeatedly identified Osborne as having participated in the crimes. Osborne requested testing on a condom and hairs found by investigators. Alaska does not have a law giving convicts access to DNA testing, unlike 43 other states and the federal government. The Circuit ruled in Osborne's favor, but the Supreme Court reversed, holding there is no constitutional right of access to evidence.
http://supct.law.cornell.edu/supct/html/08-6.ZO.html
Flores-Figueroa v. United States, 556 U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. filed 05/04/09). In order to establish the crime of aggravated identity theft under 18 U.S.C. 1028A(a)(1), the government must show that a defendant knew that a form of ID they used actually belonged to another person (as opposed to, for example, being just a randomly picked set of numbers for an SSN). The fact that the statute specifically uses the word "knowingly" in describing the criminal use of fake ID's played a key part in the decision. Ignacio Flores-Figueroa, a Mexican citizen, gave his employer a false name, birth date, and Social Security number, along with a counterfeit alien registration card. The SSN and the number on the registration card given to the employer in the year 2000 didn't belong to anyone, but in 2006 he gave his employer new cards that actually had numbers belonging to other people.
http://supct.law.cornell.edu/supct/html/08-108.ZO.html
State v. Ventris, 285 Kan. 595, 176 P.3d 920 (2008), reversed and remanded Kansas v. Ventris, 556 U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 07-1356, filed 04/29/09). Admission of the testimony of a under cover informant (cellmate) did not violate defendant's right to counsel under the Sixth Amendment. Ventris killed Hicks. The state used a jail plant and used his testimony in rebuttal to impeach Ventris's testimony. The Kansas Supreme Court held that statements obtained in violation of the Sixth Amendment are not admissible for any purpose. Cf. Harris v. New York, 401 U.S. 22, 91 S.Ct. 643, 28 L.Ed. 2d 1 (1971).
http://www.kscourts.org/Cases-and-Opinions/opinions/supct/2008/20080201/94002.htm
State v. Jones, ___ Kan.App.2d ___, ___ P.3d ____ (No. 97,976, filed 04/17/09). Jones and Briggs jacked two cars in two days in K.C. Mo. and Overland Park. The first victim's Stratus showed up in Overland Park the next day, and a witness saw the second victim get relieved of his Honda Accord at the Lighton Tower Office Building. A KCMO officer saw the Accord show up in KCMO and the occupants bailed on foot. The KCMO officer apprehended the driver, Briggs, who had keys to the Stratus on him, as well as the insurance and registration for the Accord. Officers found a silver BB gun in the Accord. Two days later, Det. Cohee interviewed Jones at the KCMO police department. Jones gave a post-Miranda confession to jacking the victim of the Accord. Briggs' fingerprints and/or DNA were found in both cars. Jones DNA was on the steering wheel of the Stratus and on a marijuana joint located therein. No latents or DNA in the Accord were positively identified to Jones. Jones was charged with aggravated robbery for jacking the Accord. Four months later, Jones wrote Cohee saying he withheld information and asking to speak to Cohee. Cohee didn't accept the invitation. At trial, Jones recanted, said Briggs and Prince D did the robberies, and alleged his confession was coerced. He tried to explain away his DNA in the stratus, saying he had just gotten a ride from Briggs and Prince D and smoked some dope in the car. He also alleged that Prince D and two other guys threatened him and robbed him the next day for talking to the police, and he wrote the letter to Cohee after his family had moved away and was no longer threatened. During deliberations, the jury asked "were there identified fingerprints on the gun." Cohee had testified that Briggs would admit his fingerprints were on the gun and no other fingerprints were present. Without waiting for a response from counsel, Judge Ruddick erroneously instructed the jury there was "no evidence was presented about fingerprints on the gun." The Court of Appeals held the judge's response was not only erroneous, but adverse to Jones defense and prejudicial and reversed the conviction.
http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2009/20090417/97976.htm
United States v. Hooks & Ferrell, ___ F.3d ___ (10th Cir. No. 08-7021 & 08-7026, filed 01/09/09). To prove constructive possession of a weapon, the government must show more than mere proximity. The government must also show knowledge of an in intent to control. Oklahoma officers stopped a pickup with dark tinted windows at a check lane. The contact officer looked in and saw what he thought was a revolver with a wooden handle lodged in the seat near the driver's (Hooks) right leg. Ferrell was in the passenger's seat. Officer later found two additional passengers in the back seat. Upon seeing the pistol handle, the officer yelled "gun" and the pickup sped away. During the chase, officers saw a dark colored shirt come out of the pickup. On the pursuit route about 3/4 mile back from the stop, officers found a black t-shirt. They also found an Uzi and several bullets. The next day, they found a .38 revolver about 15-20 feet from where they found the black shirt, and about 10 feet away from where they found the Uzi. Hooks was charged with possession of a .38, and Ferrell with possession of the Uzi. After the stop, Hooks and Ferrell were placed in the back seat of a police car with a video camera running (although pointed at the windshield), and Hooks made incriminating statements such as "They must have fo nd them straps and shit, we fixing to be gone," "I pray to God they ain't gonna find that shit." Ferrell didn't say much incriminating, but did tell Hooks on tape "As long as they don't find that revolver, cuz, you cool, 'cuase he states he thought it was a revolver. [inaudible] We can beat that shit in court." Ferrell also asked Hooks if his fingerprints were "on all that shit." Hooks indicated they might be. The jury convicted them both, but the 10th Circuit reversed as to Ferrell, finding the evidence was insufficient.
http://ca10.washburnlaw.edu/cases/2009/01/08-7021.pdf
State v. Bejarano, ___ Kan.App.2d ___, ___ P.3d ____ (No. 98.237, filed 02/20/09). In a prosecution for rape and aggravated indecent liberties with a child, a victim under the age of 13 testified by closed-circuit television rather than in person before the defendant in the courtroom. Because the trial court made all the findings required by K.S.A. 22-3434 before admitting this televised testimony, we hold the defendant's right to confront his accuser was not compromised and uphold his convictions.
http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2009/20090220/98237.htm
State v. Schultz, ___ Kan. ___, 212 P.3d 150 (2009). Officers Rhodd and Kinnett violated the defendant's Fifth Amendment rights by not reading Miranda once custody had attached, thus his incriminating statements made afterwards are not admissible. However, their Fifth Amendment violation did not require suppression of marijuana resulting from a consent search pursuant to United States v. Patane, 542 U.S. 630 (2004). Officers performed a knock and talk at Schultz's apartment after a pest-control worker saw marijuana therein and the property manager told police that Schultz appeared to be "on something." As soon as Schultz opened the door, officers smelled burnt marijuana. Rhodd told Schultz he could either cooperate and have a respectful search done, or the officers could apply for a search warrant. Rhodd also asked the suspect to consider whether a warrant would issue after ticking off the witness statements, the odor of burnt marijuana, marijuana in plain view, and marijuana hidden from view, telling the suspect he should play the judge. The Supreme Court affirmed the district court on the Miranda violation issue, stating that once officers directed Schultz to be seated at the dining room table and denied his girlfriend permission to leave, custody had attached.
http://www.kscourts.org/Cases-and-Opinions/opinions/supct/2009/20090724/98727.htm
Montejo v. Louisiana, 556 U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 07-1529, filed 05/26/09). Officers arrested Montejo for robbery and murder. Montejo waived his Miranda rights and spoke to detectives beginning late one afternoon through the early hours the next morning, continuously changing his story. Three days later Montejo had his first appearance before a judge in accordance with a statutory 72-hour hearing. Montejo remained silent, and the court appointed the indigent defender to represent him. Late that day, detectives asked Montejo to accompany them on a search for the murder weapon. During that journey, detectives again read Montejo his Miranda warnings and obtained a waiver. Montejo also wrote an inculpatory letter of apology to the victim's widow which was ultimately admitted during his trial. The Louisiana Supreme Court ruled that Michigan v. Jackson, 475 U.S. 625 (1986), only applied if a defendant asserted his right to counsel, and Montejo had stood silent. In Jackson, the Court held that once indigent defendants request that the state appoint counsel to represent them, their waivers of their right to counsel during subsequent police-initiated interrogations are void. Reversing, the United States Supreme Court overruled Michigan v. Jackson. It reasoned that requiring an "initial invocation" of the right to counsel in order to trigger the Jackson presumption might work in states that require an indigent defendant formally to request counsel before an appointment is made, but not in more than half the states (like Kansas) that appoint counsel without request from the defendant. Finding the protections of Miranda-Edwards-Minnick offered sufficient protection against police badgering, the majority saw no continuing need for Jackson. However, it remanded the case for consideration of whether Montejo's waiver was knowing, intelligent and voluntary.
http://supct.law.cornell.edu/supct/html/07-1529.ZO.html
People v. Mays, ___ Cal.App. ___ (No. C057099, 3d District, filed 05/08/09 partially published). Officers use of tactical deception (using a fake lie detector test) did not yield an involuntary admission by the suspect in a homicide case. Defendant initially denied being present at the homicide and insisted on taking a polygraph. No polygrapher was available, so detectives purported to wire up defendant to a fake polygraph machine, showed him a fake chart, and suggested he was lying. Defendant eventually admitted he was present, but denied he was the shooter. His admission was admitted into evidence. The Court held it was not involuntary despite the tactical deception.
http://caselaw.lp.findlaw.com/data2/californiastatecases/c057099.pdf
Corely v. United States, 556 U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 07-10441, filed 04/06/09). An unreasonable delay in presenting an arrestee before the court for arraignment may impact the admissibility of a confession particularly where the delay is not due to transportation and distance to court issues. Johnnie Corley was suspected of robbing a bank in Norristown, Pennsylvania. After federal agents learned that Corley was subject to arrest on an unrelated local matter, some federal and state officers went together to execute the state warrant on September 17, 2003, and found him just as he was pulling out of a driveway in his car. Corley nearly ran over one officer, then jumped out of the car, pushed the officer down, and ran. The agents gave chase and caught and arrested him for assaulting a federal officer. The arrest occurred about 8 a.m. FBI agents first kept Corley at a local police station while they questioned residents near the place he was captured. Around 11:45 a.m. they took him to a Philadelphia hospital to treat a minor cut on his hand that he got during the chase. At 3:30 p.m. the agents took him from the hospital to the Philadelphia FBI office and told him that he was a suspect in the Norristown bank robbery. Though the office was in the same building as the chambers of the nearest magistrate judges, the agents did not bring Corley before a magistrate, but questioned him instead, in hopes of getting a confession. The agents' repeated arguments sold Corley on the benefits of cooperating with the Government, and he signed a form waiving his Miranda rights. At 5:27 p.m., some 9.5 hours after his arrest, Corley began an oral confession that he robbed the bank, and spoke on in this vein until about 6:30, when agents asked him to put it all in writing. Corley said he was tired and wanted a break, so the agents decided to hold him overnight and take the written statement the next morning. At 10:30 a.m. on September 18 they began the interrogation again, which ended when Corley signed a written confession. He was finally presented to a magistrate at 1:30 p.m. that day, 29.5 hours after his arrest. Corley was charged with bank robbery. He sought to have his confession suppressed based upon the federal statute requiring "presentment" without unnecessary delay. The Supreme Court ruled that 18 U.S.C.§3501 modified McNabb v. US, 318 U.S. 332 (1943), and Mallory v. US, 354 U.S. 449 (1957), without supplanting it, and under the rule as revised by §3501(c), a district court with a suppression claim must find whether the defendant confessed within six hours of arrest (unless a longer delay was 'reasonable considering the means of transportation and the distance to be traveled to the nearest available [magistrate]'). If the confession came within that period, it is admissible, subject to the other Rules of Evidence, so long as it was 'made voluntarily and . . . the weight to be given [it] is left to the jury. 'If the confession occurred before presentment and beyond six hours, however, the court must decide whether delaying that long was unreasonable or unnecessary under the McNabb-Mallory cases, and if it was, the confession is to be suppressed. In this case, the Third Circuit did not apply this rule and in consequence never conclusively determined whether Corley's oral confession 'should be treated as having been made within six hours of arrest, nor did the Circuit consider the justifiability of any delay beyond six hours if the oral confession should be treated as given outside the six-hour window. The Court remanded the case for consideration of those issues in the first instance.
http://supct.law.cornell.edu/supct/html/7-10441.ZO.html
State v. Gant, ___ Kan. ___, ___ P.3d ___ (No. 98,026, filed 01/30/09). While being arrested for felony murder, defendant yelled at his girlfriend that he loved her, he loved his children, and that she needed to call a lawyer and another individual. Detectives interviewing him at the station read him Miranda warnings and Gant waived his rights and made incriminating statements. Conceding that he never told the police he wanted to speak with a lawyer, Gant nontheless alleged on appeal that police violated his Miranda rights. The Supreme Court disagreed.
State v. Toler, ___ Kan. ___, ___ P.3d ___ (No. 99,236, filed 05/01/09). OPPD Officer Heavin found Toler on the property of Shawnee Mission West High School one morning at 4:25 a.m. allowing her dog to run loose on school grounds. Heavin approached to ask about the fact that her dog was not on a leash and saw a handgun case that contained an unloaded Beretta 9 mm handgun. Judge Davis acquitted Defendant of having a gun on school property and the State appealed on a question reserved. The Court of Appeals sustained the appeal, holding that under the plain language of K.S.A. 21-4204(a)(5), a person may be found guilty of criminal possession of a firearm on school property, even when school is not in session or children are not present on the school property at the time the offense is committed.
http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2009/20090501/99236.htm
Dean v. United States, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 08-5274, filed 04/29/09). Petitioner Christopher Michael Dean was convicted for a bank robbery in which he fired, probably by accident, a pistol. In addition to his sentence for the bank robbery, Dean was sentenced under 18 U.S.C. § 924(c)(1)(A)(iii), which imposes a ten-year mandatory minimum sentence for the discharge of a firearm during a violent crime. The Supreme Court held the sentence enhancement under § 924(c)(1)(A)(iii) applies even if the discharge was accidental.
http://www.law.cornell.edu/supct/html/08-5274.ZO.html
City of New York, et al. v. Beretta U.S.A. Corp., et al., ___ F.3d ___ (2d Cir. Nos. 05-6942, 05-6964, 06-3692, 06-3695, filed 04/30/08). cert. denied ___ U.S. ___ (03/09/09). The U.S. Supreme Court turned away the City of New York's latest attempts at holding the firearms industry legally responsible for violence caused by the marketing of handguns that end up being sold and used unlawfully. The lawsuits, originally filed in 2000 against gun makers like Beretta, Smith & Wesson, and Colt, sought to hold the companies liable under a New York "public nuisance" law. The City of New York basically alleged that the gun makers created a dangerous condition that affected the safety of a large number of New Yorkers, by letting handguns fall into the wrong hands through illegal and private sales. A federal appeals court threw out the claims, ruling that a 2005 law shields gun makers from such lawsuits, and the U.S. Supreme Court declined to disturb that decision. According to the Associated Press, the lawsuit claimed "manufacturers let handguns reach illegal markets at gun shows in which non-licensed people can sell to other private citizens; through private sales in which background checks are not required; by oversupplying markets where gun regulations are lax, and by having poor overall security."
http://origin.www.supremecourtus.gov/docket/08-530.htm
United States v. Hayes, 522 U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 07-608, filed 02/24/09). The Fourth Circuit held that the names of thousands of dangerous abusers need to be purged from the federal Brady background check system. The Court narrowly construed the Lautenberg Amendment to bar gun possession only by abusers convicted of laws specifically barring domestic violence, rather than anyone convicted of domestic violence under general laws, such as laws against battery. The Circuit's ruling is contrary to the rulings of nine other Federal Circuit Courts. More than half of the states do not have laws specifically barring violence against spouses or family members, but instead charge abusers under general battery laws. The United States Supreme Court reversed, holding that no specific domestic relationship need be specified by the state law. In this case, Hayes was found in possession of a firearm after being convicted 10 years earlier of battery against a woman that was his wife at the time. The United States Supreme Court held "the domestic relationship, although it must be established beyond a reasonable doubt in a § 922(g)(9) firearms possession prosecution, need not be a defining element of the predicate offense."
http://supct.law.cornell.edu/supct/html/07-608.ZO.html
ConocoPhillips v. Henry, ___ F.3d ___ (10th Cir. No. 07-5166, filed 02/18/09). Appeal from 520 F. Supp.2d 1282 (N.D. Ok. 2007). The National Rifle Association has made it a major priority to pass state laws prohibiting employers from barring guns from workplaces, starting with a ban on prohibitions in company parking lots. Oklahoma was the first state to pass one of these laws, in 2005. Shortly thereafter, a consortium of companies, headed by ConocoPhillips, filed suit in federal court arguing the law is unconstitutional as a violation of property rights and the Occupational Safety and Health Act’s (OSHA) general duty clause, which requires employers in the U.S. to provide safe workplaces. On October 4, 2007, a federal court in Oklahoma permanently enjoined Oklahoma’s guns-at-work law from taking effect. The same court had issued a temporary restraining order in a previous ruling. The court held that the federal obligation to provide a safe workplace for employees under OSHA's general duty clause must trump a state law that threatens workplace safety. "In fact, the Court can imagine no other 'condition' on company property that more significantly increases the risk of death or serious bodily harm to employees in a situation involving workplace violence [than the presence of firearms.]" Courts in Utah and Oklahoma have also found there is no right to bring guns to work. The court rejected the companies’ property rights arguments, however. The Tenth Circuit reversed.
Travis v. Park City Mun. Corp., ___ F.3d ___ (10th Cir. No. 08-4115, filed 05/13/09). In an action claiming that Defendant-City's requirement that Plaintiff obtain a permit to display his art in a park violated the First Amendment, summary judgment for Defendant is affirmed, where the regulation was content-neutral and did not burden more speech than was necessary to serve legitimate government interests.
http://ca10.washburnlaw.edu/cases/2009/05/08-4115.pdf
Christensen v. Park City Municipal Corporation, ___ F.3d ___ (10th Cir. No. 07-4273, filed 02/06/2009). Officers of Park City, Utah, enforced a municipal ordinance prohibiting the sale of goods on outdoor city property against an artist selling his original work in a city park. The artist claimed a First Amendment violation. The district court dismissed his claims against the city and the individual officers. The Tenth Circuit upheld qualified immunity for the individual officers, noting that it was not clearly established that enforcing such an ordinance amounted to a constitutional violation. The Tenth Circuit reversed on the claim against the city and remanded for further proceedings to determine whether there was a constitutional violation.
http://ca10.washburnlaw.edu/cases/2009/02/07-4273.pdf
Hackbart v. City of Pittsburgh, ___ F.Supp. ___ (No. 2:07cv157, U.S.D.C. District of Pennsylvania, filed 03/23/09). Hackbart was attempting to pull into a parking place. A vehicle pulled in behind him and blocked his entry into the space. Hackbart stuck his hand out of the window and extended his middle finger to the other driver. A Sergeant driving by yelled for Hackbart not to flip off the other driver, causing Hackbart to flip a bird towards the Sergeant. The Sergeant cited Hackbart for disorderly conduct. The court held that flipping the bird was protected First Amendment activity and the Sergeant's act of citing him was retaliation for exercising First Amendment rights. The Court denied the Sergeant's motion for summary judgment and granted Hackbart's. Furthermore, there was sufficient evidence in the record that Pittsburgh police had a policy of citing people for disorderly conduct under such circumstances that Hackbart's failure to train, negligent supervision and deliberate indifference should go to the jury.
Pleasant Grove City, Utah v. Summum, 555 U.S. ___, 129 S.Ct. 1125, 172 L.Ed.2d 853 (No. 07-665, filed 02/25/09). Summum cannot make a Utah city put up a monument containing "the Seven Aphorisms of SUMMUM," a granite marker that the group donated to a public park. Pleasant Grove's park was home to other monuments donated by private entitities, including the 10 commandments donated by the Eagles club. The Court indicated that there's a difference between showing up at a park and speaking your mind (or carrying around a banner), on one hand, and forcing a city to plant a monument, on the other. It its own words: "Speakers, no matter how long-winded, eventually come to the end of their remarks; persons distributing leaflets and carrying signs at some point tire and go home; monuments, however, endure." "The placement of a permanent monument in a public park is best viewed as a form of government speech and is therefore not subject to scrutiny under the Free Speech Clause."
http://supct.law.cornell.edu/supct/html/07-665.ZO.html
Video Software Dealers Ass'n. v. Schwarzenegger, ___ F.3d ___ (9th Cir. No. 07-16620, filed 02/20/09). California passed a law stating that a person "may not sell or rent a video game that has been labeled a violent video game to a minor." The bill defined violence as killing, maiming, dismembering, etc. The law also requires labeling if the state deems the game violent. California alleged its interests in passing the act were to prevent violent, aggressive and antisocial behavior and to prevent psychological or neurological harm to minors. The Ninth Circuit, strictly construing the content-based law, struck it down. It held that due to flaws in the underlying studies, the state failed to prove a compelling state interest in preventing psychological or neurological harm. Even assuming the state met its burden, the Circuit held the state failed to prove the act was narrowly drawn and that less burdensome alternatives could not achieve its objectives.
http://www.ca9.uscourts.gov/datastore/opinions/2009/02/20/0716620.pdf
Christensen v. Park City Mun. Corp., ___ F.3d ___ (10th Cir. No. 07-4273 filed 02/06/09). After several warnings that he could not sell his paintings in a city park without a license, defendant was arrested and jailed for three days for violating a city ordinance. In a case involving the enforcement against a visual artist selling his own work of municipal ordinances forbidding any person, with certain exceptions, from selling goods or merchandise on the streets, in the parks, or on other city property, dismissal of claims against city and individual defendants is affirmed in part and reversed in part where: 1) the district court correctly held that individual defendants were entitled to qualified immunity because they did not violate a constitutional right that was clearly established at the time of their action; but 2) plaintiffs claims of municipal liability required a remand for further determination of the proper constitutional principles and determination of the facts, if necessary. Applying Pearson v. Callahan, the court declined to answer the First Amendment question as to whether a First Amendment right exists to sell art in a public forum without a license, stating:
This case is a prime example of when the discretion to avoid the first half of the Saucier two-step should be exercised. To attempt to answer Saucier’s first question would require us to opine on an open and significant issue of constitutional law on an inadequate record, without benefit either of a district court holding or of relevant briefing, even though the issue would have no effect on the outcome of the case. We therefore exercise our newfound discretion and move on.
Turning to the issue of whether the law was clearly established and whether defendants should have know it, the court said, "Police officers are not constitutional lawyers, and they should not have to fear personal damages liability when they enforce the plain terms of an ordinance that has not been challenged in court, let alone overturned, unless its unconstitutionality is patent."
http://ca10.washburnlaw.edu/cases/2009/02/07-4273.pdf
State v. Hendrix, ___ Kan. ___, ___ P.3d ___ (No. filed 10/23/09). Defendant was not entitled to a self-defense instruction where he used no actual force. Defendant and his sister were visiting their mom in the hospital when an argument broke out. Under defendant's theory, she approached him aggressively and he threatened to "break her neck." According to the victim, Defendant pulled a knife on her and threatened to kill her. Both parties agreed on the complete absence of physical force by either. Defendant requested PIK Crim. 3d 54.17 (self defense) in his prosecution for criminal threat. The Supreme Court held that the self defense instruction should be given only where the defendant uses actual, not just threatened force. Davis and Luckert dissent.
http://www.kscourts.org/Cases-and-Opinions/opinions/SupCt/2009/20091023/97323.pdf
State v. Williams, ___ Kan.App.2d ___, ___ P.3d ____ (No. 100,129, filed 09/25/09). When a defendant's defense is jury nullification, it is not reversible error to give the no-sympathy instruction - PIK Criminal 3d 51.07: "'You must consider this case without favoritism or sympathy for or against either party. Neither sympathy nor prejudice should influence you.'"
http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2009/20090925/100129.htm
State v. Davison, ___ Kan.App.2d ___, ___ P.3d ____ (No. 99,229, filed 01/30/09). Giving a version of PIK Crim 3d 59.67-B on theft detection devices prior to its revision to include the specific intent requirement from K.S.A. 21-3764(d) is reversible error.
Stewart v. Board of County Commissioners of Garfield County, Utah, ___ F.3d ___ (10th Cir. No. 07-4200 & 07-4203, filed 02/02/09). Counties filed FOIA requests with the Bureau of Land Management and the Department of the Interior regarding grazing permits. The government denied requests for emails and a consultant's report under 5 U.S.C. § 552(b)(5) saying the emails would require review of 600 back-up tapes, and the consultant's report was protected by the deliberative process privilege. The cost estimate to provide the emails was over $280,000, and the government refused to waive the fee. The Court upheld the denial of the fee waiver, as well as withholding of the consultant's report. They determined the cost was exorbitant and there was no showing the requested emails would "contribute significantly to public understanding."
http://ca10.washburnlaw.edu/cases/2009/02/07-4200.pdf
Lake v. Phoenix, 222 Ariz. 547, 218 P.3d 1004 (2009). Integral or embedded metadata captured within a document is an open record and must be disclosed.
Search and Seizure
United States v. Villa, ___ F.3d ___ (10th Cir. No. 08-8100, filed 12/29/09). The district court properly denied the defendant's motion to suppress evidence based on unreasonable continued detention. A Wyoming trooper stopped Villa's car East of Cheyenne for speeding. He approached on the passenger side and spoke to Ms. Davis. Villa and Davis said they were headed to Minnesota to visit family. (Villa later said Davis's family). The trooper described Villa as nervous, and Davis as "overly friendly." Villa had a California DL, but the registration and insurance documents had two different Nevada addresses and were only two weeks old. The trooper returned to his car and ran the information. All came back clear. The trooper then requested Villa to join him in the patrol car and asked her more questions. While filling out a warning ticket, Villa said her boyfriend lived in Nevada and that is why the car was registered there. Villa could not say which city in Minnesota they were headed to. The trooper served her the warning and returned her documents, telling her she was free to go. As she was getting out of the patrol car, the trooper asked permission to ask a few more questions. Villa agreed, and stayed in the car. In response to a Villa statement, the trooper remarked that it was a long trip for a two-day visit. Villa then said she may fly back. The trooper told her to remain in the car while he asked Davis some questions. Instead, Villa followed the trooper out of the car. Villa refused consent to search the car. The trooper requested a canine that arrived 11 minutes later and alerted on the car. The trooper found two packages of methamphetamine under a panel. Villa also possessed a gun that the trooper discovered in his back seat two months later. Villa was convicted and sentenced to a 15-year controlling sentence. Villa argued that she should have been released as soon as she and her documents came back clear. The Circuit disagreed, finding detention was justified until the trooper served the warning and returned Villa's documents, and the encounter was consensual until detention started. Further, detention was supported by reasonable suspicion based on Villa's and Davis's jacked up story.
Ohio v. Antwaun Smith, ___ Ohio ___ (filed 12/15/09, a 5-4 decision). Police officers must obtain a search warrant before searching the contents of a suspect's cell phone unless their safety is in danger. Smith was arrested on drug charges after he answered a cell phone call from a crack cocaine user acting as a police informant. Officers took Smith's cell phone when he was arrested and, acting without a warrant and without his consent, searched it. They found a call history and stored numbers that showed Smith had previously been in contact with the drug user. Smith argued that the evidence obtained through the cell phone search was inadmissible because it violated the constitutional ban on unreasonable search and seizure. The Court agreed, the majority concluding that a cell phone was akin to a closed container. A dissenting justice said the majority "needlessly theorized" about what a cell phone is capable of doing and the data it can store.
State v. Chavez-Zbarra, ___ Kan.App.2d ___, ___ P.3d ____ (No. 102,285, filed 12/11/09). A Barton County deputy stopped a vehicle when it crossed the center line on a two-lane highway. The driver turned out to be DUI. The district court held the stop was illegal based on State v. Ross, 37 Kan. App. 2d 126, 149 P.3d 876, rev. denied 284 Kan. 950 (2007), and suppressed all the evidence. The Court of Appeals reversed, holding that K.S.A. 8-1514 requires driving on the right half of the roadway, that it is a strict liability offense unlike K.S.A. 8-1522, and was a valid reason to stop the vehicle.
Michigan v. Fisher, 556 U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 09-91, per curium, 12/07/09), 2009 USLEXIS 8773 (2009). In a somewhat unusual procedure, the Supreme Court summarily granted certiorari, reversed a judgment and remanded a case, all without briefing and argument. Michigan officers responded to a disturbance complaint. A citizen approached and advised police a man was "going crazy." At the house they were directed to, officers saw a pickup truck in the driveway with its front smashed, damaged fenceposts along the side of the property, and three broken house windows, the glass still on the ground outside. The officers also noticed blood on the hood of the pickup and on clothes inside of it, as well as on one of the doors to the house. Through a window, the officers could see Mr. Fisher screaming and throwing things. The back door was locked, and a couch had been placed to block the front door. Fisher refused to answer knocks at the door. Officers saw Fisher was cut and bleeding. They asked him whether he needed medical attention. Fisher ignored these questions and demanded, with accompanying profanity, that the officers go to get a search warrant. Officers entered the residence, and Fisher greeted them with a long gun. The district court suppressed the evidence against Fisher, who was charged with assault with a dangerous weapon and possession of a firearm during the commission of a felony. Reversing, the Supreme Court stated:
"It was error for the Michigan Court of Appeals to replace that objective inquiry into appearances with its hindsight determination that there was in fact no emergency. It does not meet the needs of law enforcement or the demands of public safety to require officers to walk away from a situation like the one they encountered here. Only when an apparent threat has become an actual harm can officers rule out innocuous explanations for ominous circumstances. But "[t]he role of a peace officer includes preventing violence and restoring order, not simply rendering first aid to casualties." Brigham City, [v. Stewart, 547 U. S. 398, 126 S.Ct. 1943 (2006)] supra, at 406. It sufficed to invoke the emergency aid exception that it was reasonable to believe that Fisher had hurt himself (albeit nonfatally) and needed treatment that in his rage he was unable to provide, or that Fisher was about to hurt, or had already hurt, someone else. The Michigan Court of Appeals required more than what the Fourth Amendment demands.
Justice Stevens and Sotomayor dissented, saying the Supreme Court should not second-guess the state court judges.
United States v. Pena-Montes, ___ F.3d ___ (10th Cir. No. 08-2169, filed 12/07/09). An Albuquerque police officer saw a GMC Yukon traveling without an apparent tag and stopped the vehicle. As the officer approached, he saw a dealer plate displayed in the rear window. The officer engaged the driver and asked for his license, registration and proof of insurance. The driver produced a license, but did not have registration, a bill of sale or proof of insurance. The officer thought the vehicle might be stolen. After being advised the driver had a handgun in the vehicle, the officer removed the driver and passenger while he checked with dispatch about the registration. The officer patted down driver and passenger after learning the vehicle had not been reported stolen. The passenger had no ID and the name he used did not show up in the Arizona DL database. The passenger then gave a different birth date and SSN than he had previously. Eventually, the officer discovered the passenger was an alien and a convicted felon. The passenger filed a motion to suppress alleging he had been illegally detained. The Circuit agreed. It found the stop justified at its inception based on the officer's mistake of fact, but disagreed with the government's assertion that further detention was warranted to investigate possible misuse of the dealer plate. The law did not restrict the use of this type of plate, and the officer's mistaken conclusion that such plates are only generally used during banker's hours when dealerships are open did not warrant further detention and violated the applicable scope fo the stop.
State v. Knight, ___ Kan.App.2d ___, ___ P.3d ____ (No. 100167, filed 11/06/09). A trooper saw Knight's car on I-35 at around 11:24 p.m. cross the solid line on the left side and weave within its own lane. The trooper believed that the driver might be under the influence of drugs and/or alcohol and stopped the car. The Court of Appeals agreed the state failed to present adequate proof of a public safety stop, but held that observation of Knight's car weaving in and out of lanes without signaling and his car's weaving within its proper lane of travel, standing alone, created sufficient reasonable suspicion for the stop. The case also rejects Knight's argument that the prohibition on concealed carry violates the 2d Amendment under District of Columbia v. Heller.
State v. Sanchez-Loredo, ___ Kan.App.2d ___, ___ P.3d ____ (No. 101,912, filed 11/25/09). Huchinson police had investigated the suspect for methamphetamine distribution approximately two months before stopping her car, and had informant information that she frequently drove to Dodge City to buy meth. Officers followed her there, saw the vehicle park behind an auto detailing shop, and saw defendant go in and remain for about 10 minutes. The vehicle drove in a manner that one of the officers thought indicated the driver was attempting to locate any tails. While driving back to Hutchinson, the officers relayed information regarding a possible search warrant to an ADA. After the car entered Reno county, the officers stopped it. A drug-sniffing canine did not alert on the car, but officers obtained a warrant and searched the car, finding a pound of meth in the glove box, and paraphernalia. The district court suppressed the evidence, finding no exigent circumstances. The Court of Appeals reversed, again holding that an automobile search provides its own exigent circumstances when there is probable cause to believe contraband is in the vehicle.
Harman v. Pollock, ___ F.3d ___ (10th Cir. No. 08-4068, filed 11/18/09)(Harman II). The district court property granted defendants qualified immunity after remand from Harman I, 446 F.3d 1069 (10th Cir. 2006). Utah police had a warrant for 44 West 2700 South in Salt Lake, including its detached garage. The detached garage was actually an apartment at 44 ½ West 2700 South, and plaintiffs Harman and her boyfriend Overton lived there. After the SERT team entered, they quickly realized they were not in a garage, but saw marijuana in plain view. Thinking the apartment was a crash pad for the main house, they detained the occupants for about two hours and searched the apartment twice. After interviews, they realized the apartment and its occupants had no connection to the main house. The majority concluded that based on the officer's mistaken belief, the entry and plain view search was reasonable and, although the warrant was overbroad, based on their mistaken beliefs the officers did not violate Maryland v. Garrison, 480 U.S. 79 (1987).
State v. Isaac, 2009 WL 1858754 (Kan.App. 2009). A cell phone owner's expectation of privacy is no different from the expectation of privacy to data stored in a computer.
State v. Murphy, ___ Kan.App.2d ___, ___ P.3d ____ (No. 100,178, filed 11/13/09). In yet another "Columbo Pivot" case, a majority of this Court of Appeals panel demonstrates understanding and application of the totality of the circumstances test on determining whether a police-citizen encounter was consensual or an illegal detention. An officer stopped defendant for speeding 79 in a 70 in Geary County. The officer wrote the defendant a warning ticket, returned his document, and told him he was free to go. The defendant shook the officer's hand, apologized for speeding and began to walk away. After a Columbo Pivot, the officer said something to the effect of, "By the way, do you have any illegal contraband, drugs, alcohol or weapons in the car?" The defendant denied having those things, and gave consent to search (after consenting to a pat-down). The officer found cocaine and paraphernalia in the vehicle. The defendant claimed his consent was coerced during an illegal detention because the officer did not ask him for permission to ask further questions, and the officer still had his emergency lights on. Rejecting this argument, the majority concluded that a reasonable person would feel free to leave under the circumstances. Applying Thompson, the majority concluded the following voluntary factors outweighed the detention factors: (1) returning documents; (2) telling the defendant he was free to go, (3) physical disengagement; (4) only one officer present; (5) no display of a weapon or physical touching and (6) the encounter occurred in a public place. Defendant also claimed that admission of the lab report at trial without the chemist's testimony violated Crawford. The Court rejected this claim as well, finding the state had proffered the lab report on October 5, 2006, but defendant never objected until two days before trial, on April 2, 2007. Thus defendant waived any objection under the notice and demand statute, K.S.A. 22-3437(3) and State v. Laturner. Judge Greene dissented, finding a reasonable person would not feel free to leave. Focusing on the phrase "By the way," he said it indicates an afterthought and suggests a need to reengage the prior conversation to deal with an unfinished issue. He also questions the direction of jurisprudence, saying it encourages suspects to disrespect law enforcement. Greene stated that a suspect waives his rights if he does anything short of saying as little as possible, answering no questions until commanded to do so, declining cooperation and turning and walking away, which may seem "quite rude and disrespectful."
State v. Morlock, 289 Kan. ___, 218 P.3d 801 (No. 97,447, filed 11/06/09), reversing 40 Kan.App.2d 216, 190 P.3d 1002 (2008). The Kansas Supreme Court reversed the Court of Appeals on whether consent was voluntary due to illegal detention. The Court of Appeals held that some questions to a passenger during a traffic stop made it an illegal detention. In magical language, the Supreme Court stated:
We hold that Deputy Cocking's questions about the van occupants' travel plans did not exceed the acceptable boundaries of the traffic stop. We further hold that Cocking's taking of Morlock's driver's license to his patrol vehicle and using it to run a warrants check on the vehicle computer was justified by his reasonable suspicion, allowing an extension of the traffic stop. Accordingly, we do not address whether any taint was attenuated by Morlock's later consent to search.
We reverse the Court of Appeals and affirm the district court.
The Court of Appeals had ruled a Deputy violated a passenger's Fourth Amendment rights by inquires about travel plans and checking the passenger for warrants, and those questions tainted the later voluntary consent to search that yielded 113 pound of marijuana. The deputy stopped a van bearing Arizona plates because it twice changed lanes without signaling. The driver, a 16-year old male, was extremely nervous. The passenger looked straight ahead during the deputy's encounter with the son and would not make eye contact with the deputy. The deputy had the driver step out, and asked him Where he was coming from, how long he'd been there and the purpose of the trip. The driver said they came from Phoenix, had been there a couple of days and went to see his dad's (the passenger's) girlfriend. The driver also stated his dad rented the van. The deputy then approached the passenger, asked for a copy of the rental agreement and asked the passenger for ID. While the passenger was looking for the rental agreement, the deputy asked him the same questions he'd asked the driver. The passenger stated they were traveling from Phoenix to Kansas City, they had been in Phoenix for 2 days, and they went there to meet a woman he had met on the internet, but they never made contact with her. The passenger produced both the rental agreement and his ID. The rental agreement indicated the van was rented in Tucson, not Phoenix. The deputy asked why they flew to Phoenix but were driving back in a rented van. The passenger stated they didn't have enough money for a return flight. The deputy noticed four duffel bags in the cargo area of the van, which he thought was unusually large for a two-day trip. Neither the driver nor the passenger had warrants. The deputy returned the documents on the passenger side of the van, issued a warning citation, then said "have a nice day," and took a couple steps away. The deputy then asked if he could ask some questions. The passenger consented, and eventually consented to a search. The Court of Appeals held it was ok to ask where the van's occupants were coming from, but held that questions regarding the length of stay and purpose of the trip were not reasonably related to the purpose of the stop. While it was ok to ask for the rental agreement and about the Tucson/Phoenix discrepancy, the other questions were designed to probe into the passenger's personal business in the hope of uncovering suspicious activity. The Court of Appeals also held that the warrant check on the passenger violated State v. Damm, 246 Kan. 220, 787 P.2d 1105 (1990), and the impermissible extension of the scope and duration tainted the passenger's later consent. Thus, it held that all the evidence must be suppressed. Judge Leben wrote a well-reasoned dissent indicating that Illinois v. Harris, 543 U.S. 1135 (2005) and Illinois v. Caballes, 543 U.S. 405 both indicate that an officer can ask for a passenger's ID and run them for warrants. He also pointed out the total time of the traffic stop was only 12 minutes, and would have held the officer's actions were reasonable. But see State v. Jones.
United States v. Rivera, 570 F.34d 1009 (8th Cir. 2009). Questioning of driver about purposes of his trip and how he would contact his wife once he got to Memphis were permissible incidents of a routine traffic stop.
State v. Brittingham, ___ Kan.App.2d ___, ___ P.3d ____ (No. 100,888, filed 10/30/09). Two public housing authority employees entered defendant's apartment to check for damage from a drainage problem. One of the employees noticed two unresponsive people inside and called 911. The police responded, and eventually the persons awoke and declined medical treatment. The officer noticed drugs and paraphernalia in plain view, and received incriminating, volunteered statements from the defendant. The Court of Appeals found no error in denying a motion to suppress, holding the public housing employees were not acting as agents of the police, and police entry into the residence was a valid emergency search.
http://www.kscourts.org/Cases-and-Opinions/opinions/CtApp/2009/20091030/100888.pdf
United States v. Johnson, ___ F.3d ___ (10th Cir. No. 08-4031, filed 10/27/09). Defendant's firearm possession conviction is affirmed where defendant forfeited any Fourth Amendment privacy rights he might have had in a storage unit by directing his girlfriend to enter into the rental agreement using another person's name and stolen identification. Noting the rental contract was procured by identity fraud, the court stated, "[w]e will not be a party to this fraud by legitimizing Johnsons interest in the storage unit. Therefore, whatever subjective privacy expectations Johnson has in the storage unit were not expectations that "'society is prepared to recognize . . . as objectively reasonable.'" Good discussion of Fourth Amendment "standing" in FN 3.
http://ca10.washburnlaw.edu/cases/2009/10/08-4031.pdf
United States v. White, ___ F.3d ___ (10th Cir. No. 07-3153, filed 10/22/09). Defendants' drug conspiracy convictions are affirmed where the district court correctly refused to suppress illicit drugs discovered in their car during a traffic stop because: 1) the district court's finding that a state trooper had reasonable suspicion to pull defendant over for unsafely passing another vehicle was not clearly erroneous; 2) defendant waived his right to assert certain arguments on appeal in his plea agreement; 3) the officer had reasonable suspicion of defendants' drug activity based on a) defendants' unusual nervousness; b) their improbable travel plans; c) one defendant's criminal history; and d) Las Vegas's reputation as a narcotics source city and Indianapolis's reputation as a drug distribution hub. On October 2 Trooper Dean stopped defendant's car when he saw it pass another Eastbound vehicle and return to the right-hand lane without leaving enough space between the vehicles, an alleged violation of K.S.A. 8-1516(a). White had a valid Indiana drivers license and said he was headed home from Las Vegas after a four-day stay. The rental agreement indicated the car was rented on October 1 and was due back on October 3, which Trooper Dean said was "bizarre." Dispatch reported that White had two prior incidents of drug-related charges. After doing a trooper "two-step," Dean did not get consent to search. Dean then told White to follow him to a KDOT office about eight miles to the East for a dog sniff. The dog alerted, and officers found three bundles of marijuana in the trunk and later found for kilos of cocaine under the hood.
http://ca10.washburnlaw.edu/cases/2009/10/07-3153.pdf
State v. Ortiz, 215 P.3d 811 (N.M. App. 2009). (Summary by Ken Wallentine - Xiphos Newsletter October 2009 #1): Court Orders Surrender of Officer's Personal Cell Phone Records to Criminal Defense Attorney. Officers were looking for a car that might contain a person suspected of having just overdosed on heroin at a local store. There was information that a person in the car was giving CPR to the overdose victim. An officer saw Ortiz's car weaving and driving erratically. The officer stopped Ortiz and ultimately arrested him for DUI. Ortiz was not involved in the overdose situation. Ortiz claimed that there was no reasonable suspicion for the stop and that the officer's explanation about the overdose was pretextual. Ortiz sought an order from the trial court that the police officer be required to surrender his personal cell phone records for the time surrounding the stop and the arrest. The trial court, sustained by the New Mexico Court of Appeals, made a number of findings that would surprise any scholar familiar with electronic communications records. The court found that the officer's personal phone records for the time that he was on duty and in a marked patrol car and engaged in official duties were records under the control of the state. The court also found that neither the United States Constitution nor the New Mexico Constitution gave the officer a right of privacy in his cell phone records (though this finding did not extend to the content of communications). The court also found that the federal Electronic Communications Privacy Act did not apply to this situation. The federal law requires that no cell phone records can be disclosed to law enforcement unless there are reasonable grounds to believe that the records are relevant and material to a criminal investigation. Ortiz's defense attorney didn't use the term "fishing expedition" in the demand for the cell phone records, though he offered no substantive basis to show that the threshold for the federal statute had been met. The officer asserted his privacy rights under the federal and state constitutions and declined to provide the cell phone records. The prosecution supported the officer in his exercise of constitutional rights and maintained that the Constitution and plainly written federal statute barred the State from coercing the officer to give up his personal records. In response, the trial court dismissed the DUI and other charges against Ortiz. The court of appeals sustained the trial court. This case serves as a warning, at the very least in New Mexico, of the courts' willingness to attempt to exercise control over an officer's communication records, with no substantive basis for doing so and in a fairly plain violation of the Electronic Communications Privacy Act, when the officer is on duty, in a marked vehicle, and on official business.
State v. Johnson, ___ Kan.App.2d ___, ___ P.3d ____ (No. 100,728, filed 10/09/09). 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.
http://www.kscourts.org/Cases-and-Opinions/opinions/CtApp/2009/20091009/100728.pdf
State v. Peterman, 42 Kan.App.2d 761, 216 P.3d 710 (2009). The district court determined that a domestic standby to keep the peace was insufficient to establish the emergency exception to the warrant requirement. A female called for a standby while she removed items from her significant other's residence. The deputy didn't get explicit consent from anyone, but followed her in to the house, and Peterman came around the corner carrying an assault-type rifle. Peterman pointed the rifle at the deputy and stated, "'Get the fuck out of my house.'" The deputy put his hands in the air and told Peterman to stop. Peterman walked closer to the deputy, lifting the rifle up at an angle and repeated, "'[G]et the fuck out of my house.'" The deputy left, fearing he might be shot. At some point, officers removed a .308 caliber rifle and a magazine from Peterman's home. In a prosecution for aggravated assault on a law enforcement officer, the district court suppressed all the evidence. The Court of Appeals reversed, holding that the trier of fact should be allowed to determine whether Peterman's actions were reasonable once he knew a deputy was in his home, even though the deputy's initial entry may have been illegal. It held that evidence of a separate, independent crime initiated against police officers in their presence after an illegal entry or arrest will not be suppressed under the Fourth Amendment. See United States v. Waupekenay, 973 F.2d 1533, 1537-38 (10th Cir. 1992).
http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2009/20090925/101852.htm
State v, Marx, ___ Kan. ____, ___ P.3d ___ (Nos. 98,059 & 98,060, filed 09/18/09), reversing 38 Kan.App.2d 598, 171 P.3d 276 (2007). A motor home passed an officer sitting beside the highway. A hubcap came off the motor home. The officer retrieved the hubcap, then caught up with the motor home alleging he intending to stop it to return the hubcap. The officer saw the motor home cross the fog line, then overcorrect and cross the centerline. The officer stopped the motor home, and then smelled marijuana. After turning the stop back into a voluntary encounter, the officer asked for and was denied consent. He then stated he was going to run his dog around the outside. The driver got back into the motor home despite instructions to stop. She later exited and was arrested. A search of the motor home's interior and septic tank yielded drugs and paraphernalia. The occupants moved to suppress, arguing there was no reasonable suspicion for a stop. The Court of Appeals disagreed. It held that this was not a valid safety stop, but was a stop based on reasonable suspicion of failure to maintain a single lane in violation of K.S.A. 8-1522(a), declining to follow State v. Ross, 37 Kan.App. 2d 126, 149 P.3d 876, rev. denied 284 Kan. 950 (2007), and instead chose to follow United States v. Jones, 501 F.Supp. 2d 1284 (D. Kan. 2007). The Supreme Court affirmed the Court of Appeals ruling that the stop was not a valid safety stop, but reversed the Court of Appeals holding the stop was based on reasonable suspicion. In doing so, it interpreted K.S.A. 8-1522(a) as setting out two rules of the road: (1) a vehicle must be driven as nearly as practicable entirely in a single lane (the single lane rule) and (2) a vehicle cannot be moved from a lane of traffic unless the driver first determines the move can be made with safety (the lane change rule). Noting the single lane rule is "temporarily suspended" when it is impracticable to stay within lane markers (such as during high winds or a road obstruction). Interpreting the term "practicable" in the single lane rule, it declared the statute requires only compliance close to that which is feasible, and an incidental and minimal lane breach is not enough to establish reasonable suspicion of violating the single lane rule. Justice Davis and Justice McFarland concurred, but wrote separately to state that the majority's analysis of K.S.A. 8-1522(a) "results in an unreasonable and unworkable standard for an officer to apply when determining whether there is reasonable suspicion to initiate a traffic stop for failing to maintain a single lane."
http://www.kscourts.org/Cases-and-Opinions/opinions/supct/2009/20090918/98059.htm
United States v. Albert, ___ F.3d ___ (10th Cir. No. 07-4193, filed 09/01/09). Defendant was a passenger in a vehicle stopped for a traffic violation, and wasn't wearing a seatbelt. The officer requested his ID and ran him for warrants, in addition to the driver. The driver admitted she had no insurance, and was arrested on warrants. Albert did not have warrants, but had a suspended license. The officer searched the car incident to the driver's arrest and found methamphetamine. She had Albert placed in handcuffs, and another officer patted him down, finding a tourniquet in his front pocket. The arresting officer decided to impound the vehicle and found a shotgun and shells in the trunk. Albert admitted possession of the weapons. He was a convicted felon. He alleged the gun and shells should be suppressed because the arrest was illegal. The Circuit rejected his argument holding that he was only detained in handcuffs until the shotgun was found and Albert admitted possession. It held the use of handcuffs did not elevate the detention to an arrest and was reasonable after finding drugs in the car. The court held that seizure of the tourniquet was an impermissible frisk, but that did not transform the encounter into an arrest. Finally, it held that discovery of the shotgun and shells would be admissible either through the independent source doctrine or inevitable discovery doctrine (impound and tow would be valid).
http://ca10.washburnlaw.edu/cases/2009/09/07-4193.pdf
United States v. Parada, ___ F.3d ___ (10th Cir. No. 07-3272, filed 08/25/09). Parada was the ringleader of an operation to transport PCP from California to Virginia. He hired Bradley as a driver, and Parada bought a cooler used to transport the PCP. An officer stopped the van outside Junction City for a traffic violation. He noticed the presence of multiple air fresheners, discrepancy in the rental agreement and Bradley's nervous demeanor. The officer ran his dog around the van. The dog alerted to the driver's door, but did not indicate. The officer found a small amount of marijuana in the side pocket of the front passenger's door. They later found about $500,000 worth of PCP in a cooler in the back. Parada alleged he was illegally detained after Bradley denied consent to search, but the court had previously held the stop was legal and continuted detention was based on reasonable suspicion in a companion case, United States v. McNeill, 136 F.App'x 153 (10th Cir. 2005). Parada also allege search of the cooler was illegal, but the court held he lacked standing because he did not assert ownership or testify at the suppression hearing he had an expectation of privacy or a legitimate possessory interest in the vehicle (see United States v. Eckhart, 569 F.3d 1263 (10th Cir. 2009). Finally, the court held that while there is a difference between a dog alert and an indication, See United States v. Forbes, 528 F.3d 1273 (10th Cir. 2008), an alert is sufficient to establish probable cause.
http://ca10.washburnlaw.edu/cases/2009/08/07-3272.pdf
State v. Dean, ___ Kan.App.2d ___, ___ P.3d ____ (No. 100,120, filed 08/29/09). Wichita detectives told officer Goodman to check out reports that someone was selling crack out of a car parked in front of 1301 N. Piatt in Wichita. Goodman was familiar with the residence and knew the Defendant and others lived there. They went to the residence. No cars were parked out front. They obtained consent to enter and look around. Goodman encountered Dean in the kitchen, and asked if he had any weapons on him. Dean said no, but Goodman patted him down and found a crack pipe, other paraphernalia and cocaine on him. The Court of Appeals held the following factors were insufficient for a Terry stop or a pat down: (1) Goodman had received a report of an unidentified individual selling crack from an unidentified vehicle in front of a residence where Dean and others lived; (2) no vehicles were parked in front of the residence when Goodman arrived to investigate; (3) Goodman was only generally familiar with the residence and its occupants, including the defendant; (4) during a consensual search of the home, Goodman observed no illegal activity; and (5) when Goodman saw Dean in the kitchen, he thought Dean appeared nervous.
http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2009/20090828/100120.htm
United States v. Burgess, ___ F.3d ___ (10th Cir. No. 08-8053, filed 08/11/09). Police stopped Burgess's motor home for a traffic violation. A canine alerted and officers searched it, finding drugs and a laptop computer and two external hard drives containing child pornography. They obtained a warrant and asked to search the computer and drives for evidence of drug crimes. Officers sent the computer equipment to ICAC for forensic examination. The hard drives were searched about 1 and a half months after they were seized and a preview search yielded child pornography. Scott Hughes immediately stopped the Encase backup and obtained another warrant for search and seizure of child pornography. The search yielded about 70,000 images. Burgess argued the warrant lacked particularity and the search of the computer exceeded the scope of the warrant. The Circuit rejected his arguments, finding the seizure of the computer was justified by the automobile exception, that the initial search was within the scope of the first warrant issued and supported by probable cause to believe it contained pay-owe sheets or trophy shots, and the second warrant was specific enough to search for evidence of sexual exploitation of children. Burgess also argued the warrant should have been limited by filename or directory. The Court rejected this argument, noting the many file types, the possibility of concealment and the need for the process to remain dynamic. The court also said since the investigatory was looking for image files ("trophy shots"), the child pornography would have been inevitably discovered, and also held the Leon exception would apply. The Court also rejected a staleness claim, saying the delay in searching pursuant to the first warrant did not prejudice the defendant.
http://ca10.washburnlaw.edu/cases/2009/08/08-8053.pdf
City of Salina v. Ragnoni, ___ Kan.App.2d ___, 213 P.3d 441 (2009). Ragnoni's ex-wife called police and told them Ragnoni was suicidal because he was drunk and called her and asked her to tell the kids goodbye for him. Officers looked for him, but didn't find him at home. Three days later, based on a hotsheet entry, an officer stopped him, confirmed his identity and asked about him being suicidal. Ragnoni denied being suicidal, but the officer noticed the usual indicators of intoxication. The court held the stop based on the hotsheet entry was a valid public safety stop. [Note: This opinion is authority for a good argument that an "attempt to locate" is good for at least 3 days].
United States v. McCane;573 F.3d 1037 (10th Cir. 2009) petition for cert. filed, 78 U.S.L.W. 3221 (U.S. Oct. 1, 2009) (No. 09-402). A unanimous panel of the 10th Circuit Court of Appeals held that the Leon good-faith exception to the Exclusionary Rule should apply to uphold searches-incident-to-arrest made prior to the issuance of Gant. In April 2007, an Oklahoma City police officer arrested defendant for driving while suspended, then searched his car and located a gun. McCane was charged with being a felon in possession of a firearm. See also United States v. Albert, ___ F.3d ___ (10th Cir. No. 07-4193, filed 09/01/09); United States v. Davis, ___ F.3d ___ (10th Cir. No. 08-6266, filed 12/18/09).
State v. Hovhannisyan, ___ Kan.App.2d ___, ___ P.3d ____ (No. 101,344, filed 07/24/09). Defendant was on ISP and required to submit to random UAs and random home visits. After she tested positive a couple of times and told her probation officer she spent all her time at home, he went for a home visit and found marijuana paraphernalia in her house. She alleged the evidence should be suppressed in her prosecution for possession. The district court agreed, finding no reasonable suspicion she was smoking marijuana at her residence. The Court of Appeals reversed, noting the lesser expectation of privacy of probationers, but holding the random search provision violated State v. Bennett.
http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2009/20090724/101334.htm
State v. Ransom, ___ Kan. ___, ___ P.3d ___ (No. 99,794, filed 07/24/09). Ransom killed a person during some drug house robberies. For details see State v. Ransom, 288 Kan. 697, 207 P.3d 208 (2009). A couple days later, Wichita detectives received an anonymous tip leading them to Ransom's girlfriend's house. There, officers conducted a warrantless search, finding several weapons, which were admitted into evidence. Ransom claims they should have been suppressed because his girlfriend did not consent. In the alternative, he argued the consent was coerced because several detectives and officers surrounded her house; she was placed in a patrol car; it was cold; she was pregnant; and she needed to use the bathroom. The girlfriend and her grandmother both testified that she did not give consent, but officers testified that she did. Finding the officer's testimony more credible and the consent voluntary, the district judge denied the motion. The Supreme Court affirmed. Ransom, who was present when the search was conducted, also argued search was unlawful because he was not provided an opportunity to refuse consent. The State contends that the officers were not required to solicit Ransom's views once they had Washington's voluntary consent. The Court agreed, stating that officers had no reason to believe Ransom lived there (the girlfriend had lied to them about that) and Ransom never objected. In doing so, the Court reasoned:
Certainly, law enforcement officers are not free to ignore a resident's refusal of consent to search a dwelling and then seek a more welcoming response elsewhere, and they are not free to manipulate an uncooperative or potentially uncooperative resident's presence or absence to silence him or her. But officers are not required to seek out consent or refusal of another resident once one resident's voluntary consent has been obtained.
http://www.kscourts.org/Cases-and-Opinions/opinions/supct/2009/20090724/99794.htm
State v. Diaz-Ruiz, 42 Kan.App.2d 325, 211 P.3d 836 (2009). Trooper Nicholas stopped a pickup on I-70 in Geary county because he thought the ladder in the rear may be loose. As he approached the pickup, he tugged on the ladder. Although it moved side to side, Nicholas concluded it was secure. He then asked about travel plans and for a driver's license. The driver didn't have one, and a later check revealed he was suspended out of New Mexico. Nicholas turned it back into a voluntary encounter, then obtained consent to "check the load." Under plywood in the rear of the pickup, he found 300 lbs of marijuana. The Court of Appeals affirmed suppression, finding the occupants were illegally detained, and their consent was not attenuated from the illegal detention. While an officer can explain the purpose of the stop, once the officer dispels his suspicions he need to release the subjects. The Court also questioned the officer's credibility about the timing and preparation of a written warning citation, and pointed out the trooper was motivated by a "desire to search the vehicle of these two Hispanic men."
http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2009/20090717/100926.htm
State v. Henning, ___ Kan. ___, 209 P.3d 711 (No. 98,118, filed 06/26/09), reversing 38 Kan.App.2d 706, 171 P.3d 660 (2007). In 2006 the Kansas legislature amended K.S.A. 22-2501(c) to allow a search incident to arrest for evidence of "a" crime as opposed to evidence of "the" crime. Six days after the statutory amendment, a deputy saw Henning coming out of a convenience store, and seemed to recall he had a warrant. The deputy approached Henning after he was seated in the passenger side of a vehicle, verified the warrant and arrested Henning. The deputy then searched the car incident to arrest and found amphetamine and paraphernalia in the vehicle. Henning argued "a" crime meant only "an identified crime for which the officer has probable cause to believe occurred." The Court of Appeals held that "a" crime means "any" crime, and upheld the statute as constitutional, providing a good review of the legislative history of K.S.A. 22-2501(c) and the case law on search incident to arrest. In view of Arizona v. Gant, the Supreme Court reversed, holding the amendment was unconstitutional.
http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2007/20071130/98118.htm
Safford Unified School District v. Redding, 557 U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 08-479, filed 06/25/09). Savana Redding was a 13-year-old eighth grade honor student at Safford Middle School in Arizona when the school's principal pulled her out of class and took her to his office. Lying open on a desk in his office was Savana's planner (which she claimed to have let another student borrow), and some prescription-strength ibuprofen pills, as well. Possession of these pills on campus was prohibited by a school rule, but Savana denied having anything to do with them. Not satisfied with the denial, the principal asked to search Savana's belongings. After she allowed him to do so, (nothing was found) she was then taken to the school nurse's office where she was strip-searched quite thoroughly by the school nurse and another official (both female). No pills were found through that search either. The United States Supreme Court held there was no reasonable suspicion and held the search was illegal. However, it granted the school officials qualified immunity.
http://supct.law.cornell.edu/supct/html/08-479.ZO.html
People v. Weaver, ___ N.Y. ___ (No. 53, filed 5/12/09). The New York Court of Appeals held that before attaching a GPS device known as a "Q-Ball" to a suspect's van and continuously monitoring the car's whereabouts for 65 days, the police should have obtained a search warrant. The van was parked on a public street when the q-ball was attached, and officers wirelessly downloaded data from the GPS device by driving by the van. The state sought to use this data to prove one of two burglary charges against the van's owner. The data placed the van at a K-Mart parking lot during a burglary on Christmas Eve. Distingishing States v Knotts, 460 US 276 (1983), based on the antiquated beeper technology involved in that case, the Court relied exclusively on the New York State Constitution's analogue to the U.S. Constitution's Fourth Amendment right against unreasonable searches and seizures. The court thereby insulated its decision from reversal by the U.S. Supreme Court (because a state's highest court has the final word on the construction of state law). Smith, J., dissenting, concludes the majority needlessly hamstrings police: "criminals can, and will, use the most modern and efficient tools available to them, and will not get warrants before doing so. To limit police use of the same tools is to guarantee that the efficiency of law enforcement will increase more slowly than the efficiency of law breakers."
http://www.courts.state.ny.us/CTAPPS/decisions/2009/may09/53opn09.pdf
State v. Haffner, ___ Kan.App.2d ___, ___ P.3d ____ (No. 101,061, filed 06/18/09). The district court erred in holding there was no reasonable suspicion to search a parolee's home. Haffner was paroled on drug manufacturing charges. He peed hot on 12/04/07. On 12/19/07, an unidentified woman noticed his parole officer that she saw Haffner cooking methamphetamine in his house. A sheriff's officer received a similar anonymous tip shortly thereafter. The parole officer and police went to visit Haffner on 01/11/08. He wasn't there at the time, but they found an active cook and other items of paraphernalia and contraband. They obtained a warrant and seized the items. The district court suppressed the evidence finding no reasonable suspicion for the 01/11/08 entry into the residence. The Court of Appeals reversed, finding two anonymous calls and a failed drug test one month prior was sufficient to establish violation of parole conditions, noting that parolees have a greatly diminished expectation of privacy and the degree of reliability necessary to support a search is similarly greatly diminished.
http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2009/20090619/101061.pdf
Cassady v. Goering, ___ F.3d ___ (10th Cir. No. 074-1092, filed 05/28/09). A warrant allowing search of an entire farm and seizure of "any evidence of criminal activity," is a general warrant proscribed by the Fourth Amendment, and a Sheriff responsible for the drafting and executing of such a warrant is not entitled to qualified immunity. Two Colorado grain farmers became involved in a dispute over grain stored on defendant's farm. Cassady attempted to cut off the grain owner's (Queen) right of access to the grain. A fight ensued. Queen apparently won the fight. When police arrived, Queen told them Cassady had marijuana plants on his property. Queen said he saw them growing in a quonset hut. Despite the lack of physical injuries to Queen, Sheriff Goering arrested Cassady for battery and directed a deputy to get a search warrant. He also allowed Queen to remove the disputed grain. The deputy had never drafted a narcotics search warrant. The warrant allowed a search of the entire farm for, among other things, "any and all narcotics," and "any and all illegal contraband," and "all other evidence of criminal activity." The evidence established the officers really trashed the place while serving the warrant. The evidence was suppressed in the criminal action against Cassady. Cassady sued Goering for violating his Fourth Amendment rights. The case was tried to a jury, which awarded Cassday judgment. However the verdict was set aside due to an "prejudicially low damages award." Goering appealed from denial of qualified immunity. The Circuit affirmed denial of qualified immunity due to the general warrant holding. McConnell wrote a 21 and ½ page dissent stating the severability doctrine should have been applied to save the warrant.
http://ca10.washburnlaw.edu/cases/2009/05/07-1092.pdf
State v. Ulrey, ___ Kan.App.2d ___, ___ P.3d ____ (No. 98,411, filed 05/29/09). Deputy Tatro saw a vehicle driving in Reno county and knew the driver had a revoked license. He confirmed with a dispatcher it was still revoked, then tried to stop the car. The driver proceeded approximately a mile and a half down the road, then pulled into her own driveway. She got out and contacted the deputy in front of his patrol car. Two male passengers also got out, and Tatro told them to stand in front of the stopped vehicle. Because Tatro was outnumbered, he put the driver in the back seat of his patrol car, then talked to the two passengers. Neither had any warrants, but both had suspended driver's licenses. Tatro told them they could go in the driver's house and call for a ride. Tatro looked in the stopped vehicle for the driver's purse and saw it on the passenger floorboard. Before opening the door, he noticed the odor of anhydrous ammonia. From outside the car, he saw a red and white water jug on the back seat floor, and a red milk crate containing kitchen strainer and box of salt. When he opened the door, the smell of anhydrous got much stronger. Tatro and his back-up officer then handcuffed the two men. Ulrey was Mirandized and denied any knowledge of the items in the vehicle, saying he had just caught a ride to go fishing and drink beer. No beer or fishing items were found in the car. Ulrey was charged with various methamphetamine manufacturing charges, but the jury only convicted him of possession of anhydrous ammonia and possession of drug paraphernalia. Ulrey claimed the district court erred in denying his motion to suppress the evidence. He alleges he had standing to challenge the search of someone else's vehicle, and that he was illegally detained. The Court of Appeals affirmed, holding that Ulrey did not have standing, and the taint of his brief illegal detainment was dissipated when Tatro discovered incriminating evidence in plain view.
http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2009/20090529/98411.htm
United States v. Otero, ___ F.3d ___ (10th Cir. No. 08-2154, filed 04/28/09). A postal inspector investigating credit card fraud by a mail carrier drafted a warrant allowing a search of the carrier's house and computer for evidence of her crimes. The portion of the warrant authorizing a search of the carrier's computer allowed search and seizure of "any and all" information data devices, programs and other materials, but did not limit to to evidence for which probable cause existed. The inspector meant to limit it to items concerning mail and credit card fraud, but the warrant did not contain these limitations. The inspector presented the warrant and affdavit to an AUSA, who approved it. A judge signed it, and defendant's computer was searched, yielding some false hits, but also two erased files that were incriminating. Otero claimed the warrant lacked specificity, and the evidence should have been suppressed. The Court of Appeals agreed the warrant lacked specificity, but held that the good faith exception from United States v. Leon, 468 U.S. 897 (1984) should allow admission of the evidence because the searching officers did not have subjective knowledge that he search warrant was unconstitutional. The court noted that searches of a computer with its ability to collect a huge array of personal information into one place "makes the particularity requirement that much more important."
http://ca10.washburnlaw.edu/cases/2009/04/08-2154.pdf
Arizona v. Gant, 556 U.S. ___, 129 S. Ct. 1710, 173 L. Ed. 2d 485 (2009) (2009 WL 1045962, No. 07-542, filed 04/21/09). The Supreme Court ruled police violated the defendant's rights by searching his car incident to arrest. Rodney Joseph Gant was handcuffed, seated in the back of a patrol car and under police supervision when Tucson, Ariz., police officers searched his car. They had just seen him drive up to a house suspected of drug activity, and knew he had a warrant for driving while suspended. A sharply divided Arizona Supreme Court ruled that the search violated the Fourth Amendment. The Supreme Court agreed. It held that police can only search a car incident to arrest when it is reasonable to believe that the arrestee might gain access to the vehicle at the time of the search or that the vehicle contains evidence of the offense of arrest. "Police may search a vehicle incident to a recent occupant's arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest. When these justifications are absent, a search of an arrestee's vehicle will be unreasonable unless police obtain a warrant or show that another exception to the warrant requirement applies."
http://www.supremecourtus.gov/opinions/08pdf/07-542.pdf
United States v. Biglow, ___ F.3d ___ (10th Cir. No. 08-3155, filed 04/20/09). In a drug prosecution, the District Court's order suppressing evidence found in Defendant's home is reversed, where the government's affidavit in support of the warrant provided a substantial basis for probable cause because it showed that Defendant served as a major artery through which drugs were pumped to lower-level traffickers.
http://ca10.washburnlaw.edu/cases/2009/04/08-3155.pdf
United States v. Orduna-Martinez, 561 F.3d 1134 (10th Cir. 2009). A trooper stopped defendant's car because his Ohio State Buckeye's license plate frame was obstructing one of the two-digit year stickers on his license plate. After the stop, the trooper found 25 kilograms of cocaine in the car based on a consent search. The motion to suppress was properly denied because their was reasonable suspicion the tag was obstructed in violation of K.S.A. § 8-134.
http://ca10.washburnlaw.edu/cases/2009/04/07-3298.pdf
State v. Golston, 41 Kan.App.2d 444, 203 P.3d 10 (2009). Wichita officers made a car stop of a car suspected to be occupied by known gang members involved in drug activity after it had twice been seen at an Amoco station known for drug activity. The Supreme Court had upheld the stop in State v. Anderson, 281 Kan. 896, 136 P.3d 406 (2006). Golston, the passenger, alleged that police held him too long while awaiting the arrival of a drug-sniffing dog, and the officer's pat-down was not justified by the facts. The Court of Appeals rejected Golton's claims. Based on a the facts, a reasonable person could suspect the occupants were involved in drug activity and the detention was proper. The court also held the pat-down was proper based on a SPIDER hit (Special Police Information Date Entry Retrieval System) as a documented gang member, riding with a known gang member on supervised release for drug crimes who was involved in recent drug activity and he had just come from the Amoco known for drug activity.
http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2009/20090313/99413.htm
State v. Schuff, 41 Kan.App.2d 469, 202 P.3d 743 (2009). A Salina officer was dispatched to a call about a car driving through a dead-end street at 12:40 a.m. He responded and found a white car parked of the paved road next to a field. The officer stopped about 20 yards behind the vehicle and turned on his emergency lights. He approached the car, observed four occupants and smelled marijuana. Schuff alleged there was no reason for the stop. The court rejected his argument holding it was a valid safety stop.
http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2009/20090313/100356.htm
United States v. Poe, ___ F.3d ___ (10th Cir. No. 07-6237, filed 03/03/09). Drug and firearm convictions are affirmed, where the bounty hunters who searched Defendant's home did not qualify as state actors because they acted without the assistance of law enforcement and for their own pecuniary interests. Bounty hunters found Poe at Kim Wilson's house. The hunters believed that Wilson was Poe's girlfriend. The exact status of Poe and Wilson's relationship wasn't clear, but Poe had a key to her house, admitted he showered, shaved, changed clothes and ate there up to three times a week, and Wilson never asked him to leave. The hunter followed Wilson to a store. Wilson told them Poe was at her house, and she agreed to take them there. Wilson also said Poe had drugs in the house he was planning to sell, and there was a silver gun in the house. Poe admitted a visitor to the back door. As the visitor was leaving the same way, the hunters entered, struggled with Poe, tased one of his Pit Bulls, and apprehended Poe. The found in plain view methamphetamine, paraphernalia and a black pistol. They called police. Poe claimed it all, after being Mirandized but before being asked any questions. The Circuit held that contrary to the district court's decision, Poe had standing to raise a Fourth Amendment issue, but held that the bounty hunters were not bound by the Fourth Amendment.
http://ca10.washburnlaw.edu/cases/2009/03/07-6237.pdf
United States v. Winder, 557 F.3d 1129 (10th Cir. 2009). An Oklahoma officer saw and clocked Defendant's van speeding 49 in a 40. When the officer attempted to stop the vehicle, Defendant fled. After a 100 mph chase, Defendant pulled into a trailer park and ran into a wall. Defendant attempted to bail on foot with a shiny object in his hand, but the officer told him to drop the object or he would "kill him." Making his first good decision of the day, Winder complied. In the van officers found drugs, paraphernalia, guns, alcohol, cash and a handcuff key. Winder contended that since police policy did not allow issuance of a ticket to those speeding less than 10 miles per hour over the limit, the stop was unconstitutional. The Circuit rejected this contention, holding that an observed traffic violation is reasonable suspicion for a stop, no matter what the officer's subjective motivation.
http://ca10.washburnlaw.edu/cases/2009/02/07-6208.pdf
State v. Davison, ___ Kan.App.2d ___, 202 P.3d 44 (No. 99.673, filed 02/20/09). A Lindsborg officer stopped a car for failing to dim its brights. A check of the driver revealed she was suspended. The officer arrested her. A back up officer arrived and started searching her car. In the meantime, Defendant gave the officers instructions on having a friend come get the car. During the search, officers found drugs and paraphernalia in the car. Defendant claims it should have been suppressed, arguing that a "person who has been removed from her car, arrested, handcuffed and placed in a patrol car many feet from her own vehicle is not in the immediate presence of the area searched, that is, the car." The defendant asserted the search did not fall within the "proximity requirement" of K.S.A. 22-2501 and was therefore illegal. The Court of Appeals rejected the argument, stating: "We are convinced Kansas courts have continuously applied Belton to permit the search, under K.S.A. 22-2501, of a vehicle recently occupied by an arrestee, with the determination of whether the arrestee is a 'recent occupant' often made by reference to the Tygart factors. Applying the Tygart factors here leads us to the conclusion the search of this defendant's vehicle did not exceed the permissible scope. Here, the defendant was arrested in her vehicle, the search began shortly after the arrest was made and shortly after the defendant had departed the vehicle, and the arrest was made at a traffic stop on a public street. These factors all support the validity of the search." Greene, J., dissented, stating "I would hold that the statutory phrase 'the area within [the arrestee's] immediate presence' means the area must be within the direct, unseparated vicinity of the arrestee, with no intervention preventing direct access to and awareness by the person. Such an area would clearly not include the vehicle under the circumstances in this case."
http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2009/20090220/99673.htm
United States v. Vazquez, ___ F.3d ___ (10th Cir. No. 08-4044, filed 02/10/09). A Nevada interdiction officer stopped Mr. Vazquez and was suspicious about him, but could not make a case. He called a Utah officer and relayed his suspicion. The Utah officer stopped Vazquez's car at about 3:45 a.m. after seeing it cross lane divider lines a few times. Four minutes into the stop, the Utah officer invited Vazquez back to his car. A computer check revealed a history of cocaine trafficking. Vazquez said he lived in Illinois and borrowed his girlfriends's car (who lived in Tennessee) to visit his children in Las Vegas because the car got better gas mileage. He identified her as Melissa Brooke Shepard although registration listed the owner as Melissa Brooke Shoup. Vazquez had difficulty explaining what she did for a living, eventually saying she was between jobs. When asked if he had various contraband in the car, Vazquez said no, but altered his body language when asked about methamphetamine. 19 minutes into the stop, Vazquez denied a consent search. A dog alerted on the vehicle, and police later found methamphetamine. Defendant alleged the stop was illegal, and the duration and scope exceeded reasonableness. He also claimed the district court improperly admitted expert testimony by a law-enforcement officer regarding how traffickers hide drugs. The Circuit rejected both contentions, finding the stop was based on reasonable suspicion Vazquez violated a statute saying motorists must drive "as nearly as practical entirely within a single lane," the scope and duration was reasonable based on indicators of drug activity, and the officer was qualified to testify about how traffickers hide drugs.
http://ca10.washburnlaw.edu/cases/2009/02/08-4044.pdf
United States v. Sanchez, ___ F.3d ___ (10th Cir. No. 08-5047, filed 02/10/09). Defendant was standing by a vehicle in the driveway of a house when police arrived to execute a drug search warrant. Defendant ordered him to get down, but he ran instead. Officers pursued and apprehended him. They found cash, keys to the house, and a cell phone with a picture of the defendant holding a gun found in the house on defendant's person. He claimed the search was illegal and the evidence should be suppressed. The Circuit disagreed, holding the warrant was valid, officers had the right to detain Sanchez, and his flight gave officers probable cause to arrest for obstruction. Although the warrant affidavit did not specifically lay out direct evidence of criminal conduct at the supplier's house, it is "merely common sense that a drug supplier will keep evidence of his crimes at his home."
http://ca10.washburnlaw.edu/cases/2009/02/08-5047.pdf
Arizona v. Johnson, 555 U.S. ___, 129 S.Ct. 781, 172 L.Ed.2d 694 (2009). Does the Fourth Amendment require an officer before frisking a passenger in a stopped car, to have 1) reasonable suspicion that a passenger in a car is armed and dangerous, and, 2) reasonable suspicion that the armed and dangerous passenger has committed a separate crime? In a 9-0 decision, the United States Supreme Court said no. An officer may frisk a passenger (or driver) in a stopped vehicle any time the officer possesses reasonable suspicion that such passenger (or driver) is armed and dangerous to the officer. Period. Secondly, the decision briefly mentions, and again supports, that during Terry Stops (like car stops) officers may ask questions unrelated to the reason for the stop as long as the duration of the stop is not prolonged by the unrelated questions. Tucson gang officers stopped a car in the Sugar Hill area due to a insurance suspension. Johnson was a back-seat passenger. When the vehicle stopped, he was speaking to the front-seat occupants, then turned around and looked backwards at the officers behind him. He was dressed all in blue and had a blue bandana and a scanner in his pocket. He admitted that he had done time for a felony. An officer asked him to get out of the car because she wanted to question him about his gang affiliation. The officers said the Sugar Hill area was associated with the Crips gang. Once he got out of the car, she patted him down. Near his waistband she felt the butt of a handgun. Johnson then began to struggle and was placed in handcuffs. Johnson also had marijuana in his pocket and was convicted felon. Johnson alleged the evidence should have been suppressed.
You may recall, Kansas is currently fighting over this "unrelated questioning" issue, our state Supreme Court having earlier held in State v. Smith (2008) that Terry v. Ohio (1968) did not change after Muehler v. Mena (2005), and thus preventing Kansas officers from asking unrelated questions. In the Smith decision, Kansas did not join the national minority opinion on prohibiting unrelated questioning……Kansas became the national minority opinion. Well, this new Johnson case gives new life to our argument in Smith, and be assured that we are immediately moving forward on that front. The plan is to attack Smith in the Sedgwick County SO case of State v. Morlock (2008)(based upon Smith, officers may not ask questions of passengers without reasonable suspicion that the passenger has committed a crime, travel plans, etc.), currently pending review by the Kansas Supreme Court.
http://supct.law.cornell.edu/supct/html/07-1122.ZS.html
State v. Bennett, 288 Kan. 86, 200 P.3d 455 (2009)(affirming State v. Bennett, 39 Kan.App.2d 890, 185 P.3d 320 (2008)). Nicholas Bennett was convicted of possession of meth and placed on probation. One of the conditions of his probation was that he was required to submit to random, suspicionless searches by community corrections and/or law enforcement officers. The Kansas Supreme Court held such a condition is unconstitutional. The court stated: "Given probationers' expectations of privacy, community corrections officers or other law enforcement officers must have a rational, articulable suspicion of a probation violation or other criminal activity before subjecting the probationer's person or property to a search." Therefore, in Kansas, these are the rules concerning the search of convicted persons (in declining order because of the declining degree of state control over the defendant):
1. Incarcerated prisoners have no expectation of privacy, and are subject to random and suspicionless searches.
2. Parolees have more expectation of privacy than an incarcerated prisoner, but less than a free citizen; therefore, parolees are subject to suspicionless searches as long as the searches are not "arbitrary or capricious."
3. Probationers have a greater expectation of privacy than do parolees, but still less than a free citizen. Therefore, despite whatever conditions a court may order, community corrections officers or other law enforcement officers must now have reasonable suspicion of criminal activity before subjecting a probationer to a search of their person or property.
4. Free citizens enjoy the most protection from unreasonable searches: an officer must have probable cause to search.
Remember that you may at anytime request consent to search, except during a temporary detention (Terry Stop) if such request for consent to search is outside the scope of the reason for the temporary detention.
http://www.kscourts.org/Cases-and-Opinions/opinions/supct/2009/20090130/98038.htm
State v. Branstetter; ___ Kan.App.2d ___, 199 P.3d 1272 (No. 98,884, filed 01/23/09, motion for rehearing filed 02/05/09, petition for review filed 02/23/09). Jason Branstetter walked out of a store, got into his car and drove away. A deputy knew Branstetter, knew he probably had warrants and drugs, and stopped his car. A passenger in Jason's car was negative for warrants. The vehicle's owner was not present, and based upon the agency's policy, the deputy did not ask Jason what Jason wanted done with the car. The passenger was never given the opportunity to take possession of the car. During a later inventory search of the vehicle the deputy found methamphetamine in center cup holder of the rear seat. The Court of Appeals held the inventory search (search incident to arrest?) should be suppressed because there was no reason to tow the vehicle. The judges remind us that an inventory search is an exception to the search warrant rule because "they serve three purposes: the protection of the owner's property while it remains in police custody, the protection of the police against claims or disputes over lost or stolen property, and the protection of the police from potential danger….[a]n officer searching a car after a lawful impoundment may conduct a 'warrantless inventory search of the personal property within the vehicle, including the glove box and trunk, when the same may be accomplished without damage to the vehicle or its contents.'"
"Although no bright-line rule specifies or limits the 'reasonable grounds' for impoundment, our Supreme Court has identified six situations giving rise to reasonable grounds: ….[T}he necessity for removing 1) an unattended-to car illegally parked or otherwise illegally obstructing traffic; 2) an unattended-to car from the scene of an accident when the driver is physically or mentally incapable of deciding upon steps to be taken to deal with his property, as in the case of the intoxicated, mentally incapacitated or seriously injured driver; 3) a car that has been stolen or used in the commission of a crime when its retention as evidence is necessary; 4) an abandoned car; 5) a car so mechanically defective as to be a menace to others using the public highway; 6) a car impoundable pursuant to ordinance or statute…," like forfeiture. State case law requires that the owner, operator or person in charge of the vehicle, if able, to make a determination as to the disposition of the vehicle. "Only when a vehicle is found illegally parked and unattended, or where the person responsible for its possession is unable….or unwilling to instruct the arresting officers as to the vehicle's disposition or some other legal reasonable justifying impoundment exists should the officers assume control over the vehicle." But see K.S.A. 8-1570(c)(3) which allows an officer to lawfully impound a vehicle "[w]hen the person driving or in control of such vehicle is arrested for an alleged offense for which the officer is required by law to take the person arrested before a judge of the district court without unnecessary delay."
http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2009/20090123/98884.htm
United States v. Villegas, ___ F.3d ___ (10th Cir. No. 08-4078, filed 02/02/09). An officer stopped a car for a traffic violation, then received consent to search after turning the stop back into a voluntary encounter. The officer found drugs in the car after the defendant drove it 22 miles away and put it up on a lift. Defendant claims the officer's hand gesture (upraised fingers and showing an open palm) after returning his documents constituted an order for defendant to stay and answer questions, rendering his consent involuntary. The Circuit rejected his argument, finding no reason to disturb the district court's finding the gesture was akin to a vague, inconsequential hand gesture."
http://ca10.washburnlaw.edu/cases/2009/02/08-4078.pdf
United States v. Turner, ___ F.3d ___ (10th Cir. No. 07-1318, filed 01/27/09). A conviction for possession of ammunition by a previously convicted felon is affirmed over claims that the district court erred by: 1) denying defendant's motion to suppress; 2) failing to instruct the jury properly on the law of possession; and 3) limiting his ability to cross-examine a key witness on a specific matter.
United States v. Dejear, ___ F.3d ___ (10th Cir. No. 07-6821, filed 01/09/09). Oklahoma City officers approached a house known to be frequented by gang members. In the driveway, they saw three people sitting in a Caprice. The person in the back seat had a baseball bat in his hands. An officer approached the person (Dejear) sitting in the passenger seat with the door open and his feet outside the car. Dejear looked up, his eyes widened, and he appeared "in a very nervous state." Dejear began stuffing both hands between the seat bottom and the seat back. The officer yelled "show me your hands." Dejear continued to stuff. The officer drew down on him and repeated the command. Dejear complied after the third command. The officer asked what he had been stuffing, and Dejear said, "some weed." Officers searched the car and found weed and a gun. Dejear was charged with possession with intent to sell and possession of the firearm. The jury convicted him of simple possession of both. Dejear claims the evidence should have been suppressed because (1) there was no reasonable suspicion to detain him; (2) no Miranda warning was given; and (3) officers should have gotten a warrant before searching the car. The Circuit rejected all these arguments, holding (1) presence in a high crime area accompanied with nervousness, furtive gestures and refusal to comply with commands was sufficient reasonable suspicion to detain; (2) no Miranda warning was required under the Quarles public safety exception, and (3) the search was a valid automobile search, even though the car searched was in a private driveway (not Dejear's driveway).
http://ca10.washburnlaw.edu/cases/2009/01/07-6281.pdf
Dias v. City and County of Denver, ___ F.3d ___ (10th Cir. No. 08-1132, filed 05/27/2009). Denver passed an ordinance prohibiting the ownership or possession of a pit bull, which the ordinance defined as "any dog that is an American Pit Bull Terrier, American Staffordshire Terrier, Staffordshire Bull Terrier, or any dog displaying the majority of physical traits of any one (1) or more of the above breeds, or any dog exhibiting those distinguishing characteristics which substantially conform to the standards established by the American Kennel Club or United Kennel Club for any of the above breeds." Plaintiffs, none of which still lived in Denver or planned to return, sued alleging the ordinance was invalid for a variety of reasons. The district court held that plaintiffs lacked standing for prospective relief since none planned to return to Denver and were not likely to be prosecuted. The Circuit affirmed. It also affirmed dismissal of a facial vagueness claim, holding the ordinance was specific enough to be enforced. However, the Circuit reversed on a substantive due process claim, finding the petition adequately stated a claim that the ordinance was not rationally related to a legitimate government interest. Construing the facts in the light most favorable to plaintiffs, and reviewing the AKC and UKC breed standards, both of which claimed pit bulls are friendly and good with children, the Circuit held there was a lack of evidence that pit bulls as a breed pose a threat to public safety or constitute a public nuisance.
http://ca10.washburnlaw.edu/cases/2009/05/08-1132.pdf
Title 7
Ricci v. DeStefano, 556 U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 07-1428/08-328, filed 06/29/09, 2009 U.S. LEXIS 4945). The City of New Haven Connecticut refused to certify promotional exams for the rank of lieutenant and captain within their fire department due to disproportionate adverse impact on African-American firefighters who had taken the exam. White and Hispanic firefighters sued, alleging the refusal violated Title 7. The United States Supreme Court agreed. The City's reasons for advocating non-certification were related to the racial distribution of the results. Without some other justification, this express, race-based decision making violates Title VII's command that employers cannot take adverse employment actions because of an individual's race. "If an employer cannot rescore a test based on the candidates' race, § 2000e-2(l), then it follows a fortiori that it may not take the greater step of discarding the test altogether to achieve a more desirable racial distribution of promotion-eligible candidates -- absent a strong basis in evidence that the test was deficient and that discarding the results is necessary to avoid violating the disparate-impact provision. Restricting an employer's ability to discard test results (and thereby discriminate against qualified candidates on the basis of their race) also is in keeping with Title VII's express protection of bona fide promotional examinations."
http://supct.law.cornell.edu/supct/html/07-1428.ZO.html
Citifinancial Auto, Inc. v. Mikes Wrecker Service, 41 Kan.App.2d 914, 206 P.3d 63 (2009). Riley county police found a 2004 Mustang abandoned in a parking lot with no tags. Mikes towed the vehicle. It ran the VIN through the KDOR database and received a "No Records Found" response. It sold the vehicle to itself at its own auction on one day's notice for $500, and later sold the vehicle to someone else for somewhere between $11,000 and $12,000. Citifinancial had a $8,641.52 lien on the car, and was noted on the Nevada title as a lienholder. Citifinancial sued Mikes. The district court granted summary judgement holding that Mikes failed to make a reasonable effort to notify Citifinancial. The Court of Appeals reversed, holding the record was insufficient for summary judgement on the due process issue and remanded for further proceedings. However, in doing so, it seemed to suggest that mere compliance with K.S.A. 8-1101 may not be enough when CARFAX and other commercial title search services are available.
http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2009/20090501/100272.htm
State v. Madkins III, ___ Kan.App.2d ___, ___ P.3d ____ (No. 100,593, filed 11/20/09). Defendant was charged with possessing drugs and sought to voir dire jury panel members on whether they would believe statements just because a police officer said them. After a general question to the panel with no response, the trial judge restricted further inquiry in this area. Finding no reversible error, the Court of Appeals affirmed, finding that further inquiry would be cumulative. The Court adopted the following test: "To determine whether prohibited voir dire questions regarding prospective juror opinion on police credibility violates a defendant's constitutional right to trial by an impartial jury, the court considers the following three factors: (1) whether police officer credibility is at issue in the case and to what extent, (2) whether the prohibited inquiry is cumulative so as to provide no additional benefit in discovering bias, and (3) whether police officer testimony is corroborated by other, nonpolice witnesses." ___ Kan.App.2d ___, Syl. ¶ 10.
January 1, 2008 to December 31, 2008 (or thereabouts)
Sandage v. Bd. of Commissioners of Vandenburgh County, 548 F3d 595 (7th Cir. 11/24/08). A county work release inmate harassed, then murdered a woman and two other people before committing suicide. Their heirs sued the county claiming the sheriff's failure to act on the woman's complaint and revoke work release deprived the plaintiffs of due process. The Circuit affirmed dismissal, finding no constitutional right to be protected by the government against private violence in which the government is not complicit. The record showed the danger tot he plaintiffs was created by the prisoner alone.
Buckley v. Haddock, ___ F.3d ___ (11th Cir. No. 07-10988, unpublished, filed 09/09/08). Use of a taser against a passive resister did not constitute excessive force. Officer stopped a driver for speeding. After the driver refused to sign the citation and was told he would be arrested if he did not sign, the driver was handcuffed and being led to the patrol car. The driver became despondent and made statements like, "my life would be better if I was dead." He dropped to the pavement and would not get up. The officer drive-stunned him three times in an effort to get him to get up. The district court held the force was excessive. The 11th Circuit reversed, finding three facts made the force seem reasonable: (1) the incident occurred at night on the side of a highway with considerable passing traffic; (2) the deputy could not complete the arrest – that is, truly control Plaintiff -- because Plaintiff was resisting, and (3) the deputy resorted to using the taser only after trying to persuade Plaintiff to cease resisting, after attempting to lift Plaintiff, and after repeatedly and plainly warning Plaintiff that a taser would be used and then giving Plaintiff some time to comply. No constitutional basis exists for requiring two or more officers to make routine arrests, even if deploying more officers might result in less force actually being used. See Menuel v. City of Atlanta, 25 F.3d 990, 996-97 (11th Cir. 1994) ("'The Fourth Amendment does not require officers to use the least intrusive or even less intrusive alternatives in search and seizure cases. The only test is whether what the police officers actually did was reasonable.'" (quoting Plakas v. Drinski, 19 F.3d 1143, 1149 (7th Cir. 1994)). In doing so, the court noted the reason for arrest was relatively minor, but credited the government "with a significant interest in enforcing the law on its own terms, rather than on terms set by the arrestee. The government has an interest in arrests being completed efficiently and without waste of limited resources; police time and energy that may be needed elsewhere at any moment."
http://www.ca11.uscourts.gov/unpub/ops/200710988.pdf
Weigel v. Broad, 544 F.3d 1143 (10th Cir. 2008). Officers were not entitled to qualified immunity where they engaged in excessive force and caused decedent's in-custody death from positional asphyxia. Troopers were u-turning to go Northbound on I-25. Weigel ran into the back of one of them. Troopers smelled alcohol on his breath, and were taking him to their patrol car for field sobriety testing. Weigel ran out into traffic, getting hit by a van's mirror. Then, one of the troopers tackled Weigel in a ditch and the fight was on. Weigel fought violently, including attempted gun grabs. Two troopers and several citizens eventually restrained Weigel, one by putting weight on his back while Weigel was prone and a citizen laid on his legs. Weigel expired of cardiac arrest. The majority held: 1. There was evidence that for three minutes troopers subjected decedent to force that they knew was unnecessary to restrain him and that a reasonable officer would have known presented a significant danger of asphyxiation and death, constituting unreasonable use of force under the Fourth Amendment; and 2. The law they violated was clearly established at the time of the incident. Obrien dissents, saying the majority's opinion sounds too much like negligent tort law. He also contends the majority's analysis fails to consider the totality of the circumstances because it makes no allowance fo the trooper's assessment of the amount of force required. He also criticized the majority for failing to consider the trooper's reactive force in view of Weigel's unprovoked aggression.
http://ca10.washburnlaw.edu/cases/2008/10/05-8094.pdf
Rhoten v. Dickson, 40 Kan.App.2d 433, 192 P.3d 679 (2008). When discovery revealed that Bruce Dickson, who struck Danielle Rhoten's car was not aware a Topeka police officer was chasing him, the federal court dismissed Danielle Rhoten's civil rights complaint against The City of Topeka and Lieutenant Frank Pase, who was attempting to catch up, but was not pursuing Dickson. The federal judge found no causal connection between the police officer's acts and Rhoten's injury. After that ruling, the federal court declined to hear Rhoten's state negligence claims, and she filed a lawsuit against the City and the officer in Shawnee district court. The district court dismissed her suit on the basis of res judicata, sometimes called claim preclusion, and collateral estoppel, also known as issue preclusion. The Court of Appeals affirmed, finding that the lack of causation finding in the federal action bars a proceeding in a negligence action.
http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2008/20080926/98837.htm
Keylon v. City of Albuquerque, 535 F.3d 1210 (10th Cir. 2008). In a 42 U.S.C. section 1983 action alleging that plaintiff's Fourth Amendment rights were violated when she was arrested without probable cause for concealing her identity, denial of post-trial motion by plaintiff after a jury found defendant-officer not liable is reversed where, since there were no disputed issues of material fact regarding whether the officer had probable cause to arrest, the district court erred in denying plaintiff judgment as a matter of law and in submitting the question of qualified immunity to the jury. Officers were investigating an alleged criminal damage case. Keylon was identified as the suspect's mother. An officer asked her for the son's date of birth. Keylon said she did not know. The officer determined she was lying, demanded ID from her, and then arrested her for concealing her identity in violation of a statute prohibiting "resisting or abusing a . . peace officer in the lawful discharge of his duties." Finding there was no reasonable suspicion to suspect that Keylon was violating an ordinance, the Circuit held there was no probable cause for her arrest and the issue of qualified immunity should not have been submitted to the jury.
http://ca10.washburnlaw.edu/cases/2008/08/07-2071.pdf
Vondrak v. City of Las Cruces, 535 F.3d 1198 (10th Cir. 2008), cert. denied 129 S.Ct. 1003 (2009). In an action brought under 42 U.S.C. section 1983 against defendants-officers and city claiming illegal arrest, excessive force, inadequate medical attention, and failure to train city's police officers adequately, partial denial of summary judgment for defendants based on qualified immunity is affirmed in part and reversed in part where: 1) defendant-officer was entitled to qualified immunity on an illegal arrest claim as plaintiff's statement that he "had one beer three hours ago" provided her with reasonable suspicion to conduct field sobriety tests, or at the very least provided her with "arguable reasonable suspicion" entitling her to qualified immunity; but 2) qualified immunity was properly denied on an excessive force claim for unduly tight handcuffing. Officers were conducting a sobriety check lane. Vondrak drove into the check lane and admitted the statement above. The officer conducted field sobriety tests, and Vondrak stated he probably could not do the one-legged stand even if he had never had a drink. Vondrak exhibited several clues on both it and the walk and turn test, as well as the horizontal gaze nystagmus test, and was arrested. The breath test was 0.00, confirmed by a later blood test. Depending on who you believe, Vondrak complained about tight handcuffs for the 1.5 to two hours he was in custody. He was diagnosed with nerve damage to his wrists, which affected his work as an orthodonitist. Finding that Vondrak had a clearly established constitutional right to be free from overly-tight handcuffing, the Circuit held that the officer's qualified immunity claim should have been denied.
http://ca10.washburnlaw.edu/cases/2008/08/07-2148.pdf
Wellhausen v. University of Kansas, ___ Kan.App.2d ___, ___ P.3d ____ (No. 98,663, filed 8/8/08). KU had no duty to protect or warn of known, obvious dangers. Eric Wellhausen climbed out the window of his 7th Story room in Oliver Hall to stand on a two-foot wide concrete ledge about 5 feet below the window. He fell and died, with a bac of 0.16. The district court properly granted summary judgment based on discretionary act immunity under K.S.A. 75-6104(e), and design immunity under K.S.A. 75-6104(m).
http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2008/20080808/98663.htm
Amundsen v. Jones, ___ F.3d ___ (10th Cir. No. 06-4310, filed 7/15/2008). A Utah deputy saw a vehicle weaving between lanes and change lanes without signaling. The deputy stopped the vehicle, and noticed the driver had constricted pupils. The expiration date on the registration did not match the one on the license plate. The deputy asked the driver to step out to note this difference. While getting out the driver stumbled. The deputy then administered roadside sobriety tests, then arrested the driver for DUI. She transported her to the station where breath, urine and blood were collected. All were negative for alcohol. The driver was charged, but all charges were later dismissed. The driver then sued the deputy for an unreasonable search and seizure, as well as violation of her due process and equal protection rights. The district court denied summary judgment in part, reasoning that a jury could find that the deputy lacked reasonable suspicion and the sobriety tests exceeded the scope of the stop. The Circuit reversed, noting the issue is whether an improper lane change, standing alone, is sufficient to create reasonable suspicion of intoxication. The Circuit held that repeated weaving, compared with isolated weaving, will support a stop, distinguishing the de minimis weaving at issue in United States v. Gregory, 79 F.3d 973, 978 (10th Cir. 1996)(isolated incident of crossing into another lane) and United States v. Lyons, 7 F.3d 973, 976 (10th Cir. 1993)(weaving within its lane, without more, is not reasonable suspicion for a stop). Since there was reasonable suspicion of DUI, the roadside sobriety tests did not exceed the reasonable scope of the stop, and later toxicology testing was consensual, Therefore, the district court should have granted the deputy summary judgment.
http://ca10.washburnlaw.edu/cases/2008/07/06-4310.pdf
Exxon Shipping Co. v. Baker, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 07-219, filed 6/25/08). Although the jury awarded $5 billion in punitive damages against Exxon (reduced on appeal to$2.5 billion), the amount was still excessive and the court limits punitive damages to equal compensatory damages, $500 million.
http://supct.law.cornell.edu/supct/html/07-219.ZO.html.
Wilkins v. DeReyes, ___ F.3d ___ (10th Cir. No. 06-2245 and 06-2260, filed 6/13/2008). Two gang members sued Albuquerque detectives claiming they were maliciously prosecuted for murder based on fabricated evidence. The gang members claimed the detectives coerced fellow gang members into implicating the plaintiffs in a quadruple homicide. Both plaintiffs were prosecuted, but both cases resulted in a mistrial due to a hung jury. The defendants claimed the plaintiffs' action was barred by the statute of limitations and qualified immunity. The district court denied their motion and defendants appealed. The 10th Circuit affirmed, holding the facts alleged by the plaintiffs established malicious prosecution resulting from an alleged unreasonable seizure. Although arrested pursuant to legal process (arrest warrants), a cause of action for malicious prosecution (as opposed to false arrest or false imprisonment) will lie if a plaintiff can prove (1) defendant caused the plaintiff's continued confinement or prosecution (2) the original action terminated in favor of the plaintiff; (3) no probable cause supported the original arrest, continued confinement or prosecution; (4) the defendant acted with malice; and (5) the plaintiff sustained damages. The arrest warrants were based solely on the alleged coerced statements, and if those statements were false, there was nothing left in the affidavits to support probable cause. Although later information added to probable cause, it was not included in the affidavits for arrest warrants and will not be considered by the Court. Also, cases are favorably terminated by the formal abandonment of the proceedings by the public prosecutor combined with judgment by the prosecutor the case could not be proven beyond a reasonable doubt. The law was clearly established that probable cause depends on reasonably trustworthy information, and that false statements in an affidavit violate the Fourth Amendment.
http://ca10.washburnlaw.edu/cases/2008/06/06-2245.pdf
Heston v. City of Salinas, C 05-03658 JW, U.S. District Court, Northern District of California (San Jose, 6/6/08). Taser International Inc., the largest stun-gun maker, lost a $6.2 million jury verdict over the death of a California man who died after police shot him multiple times with the weapon. The defeat is the first for Taser in a product- liability claim. A San Jose, California, jury said Taser had failed to warn police in Salinas, California, that prolonged exposure to electric shock from the device could cause a risk of cardiac arrest. The jury awarded $1 million in compensatory damages and $5.2 million in punitive damages to the estate of Robert Heston, 40, and his parents. The jury cleared the police officers of any liability. Taser previously won two trials, one over claims by a police officer injured in a training accident and the other involving a death in custody. Taser has settled at least 10 cases involving injuries to police officers during training, company lawyer Doug Klint told Bloomberg News last year. Taser said it will appeal the verdict. The compensatory damage verdict will be reduced by the jury's finding that Heston was 85 percent responsible for his death. Heston died on Feb. 20, 2005, after his father had called Salinas police because his son was "acting strangely,'' and seemed to be on drugs," according to the lawsuit complaint. Salinas police shot Heston multiple times with the stun-gun, continuing to discharge their Tasers into him until he stopped moving, the lawsuit claims. Heston went into cardiac arrest and died. His parents sued Taser, alleging failure to warn of the dangers of the weapon, and Salinas police officers, claiming excessive force. The jury "exonerated the police because they said the police didn't know repeated exposures could kill someone." Use of the Taser on Heston didn't cause his death. Heston fit the well established symptom pattern for methamphetamine intoxication and associated excited delirium.
Engquist v. Oregon Dept. Of Agriculture, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 07-474, filed 6/9/2008). Petitioner Engquist, an Oregon public employee, filed suit against respondents--her agency, her supervisor, and a co-worker--asserting, inter alia, claims under the Equal Protection Clause: She alleged she had been discriminated against based on her race, sex, and national origin, and she also brought a so-called "class-of-one" claim, alleging that she was fired not because she was a member of an identified class (unlike her race, sex, and national origin claims), but simply for arbitrary, vindictive, and malicious reasons. The Supreme Court held the class-of-one theory of equal protection does not apply in the public employment context.
http://www.law.cornell.edu/supct/html/07-474.ZS.html
Archuleta v. Wagner, ___ F.3d ___ (10th Cir. No. 07-1108, filed 04/29/2008). Jail deputy was not entitled to qualified immunity for performing a strip search of a woman jailed on an invalid warrant for someone else. Archuleta was arrested on a warrant for "DV-harassment"meant for Phyllis Rivera, a lesbian Hispanic female, 42-42 years old. Archuleta, a 46-year old mother of nine, was arrested after a traffic stop. She was frisked at the scene, then twice more at the jail, before defendant strip-searched her. Archuleta claimed mistaken identity, and the defendant at one point allegedly said "this isn't her," when Archuleta did not have the moles and tattoos identified in the jail's computer files, and also allegedly stated that she knew Archuleta was innocent. Archuleta began lactating while being force to stand naked and defendant belittled her and ordered her to put her arms down when she attempted to cover up. Finding no reasonable suspicion to suspect defendant was armed and that she would not be put in general population, the Circuit held that a strip search violated Plaintiff's constitutional rights, those rights had been clearly established since at least January 24, 1991, and defendant was not entitled to qualified immunity.
http://ca10.washburnlaw.edu/cases/2008/04/07-1108.pdf
Potts v. Board of County Commissioners of Leavenworth County, Kansas, ___ Kan.App.2d ___, ___ P.3d ___ (No. 97828, filed 2/22/2008). An elderly lady fell and refused medical treatment. She died two weeks later. Her heirs sued the county and the EMTs alleging they had a duty under their protocols to transport the elderly lady against her will and in view of a durable power of attorney. The district court granted summary judgment. The Court of Appeals affirmed, applying the public duty doctrine. It held the EMTs did not owe a special duty based on the County's protocols.
http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2008/20080222/97828.htm
Ali v. Fed. Bureau of Prisons, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 06-9130, filed 1/22/2008). In a case involving the scope of 28 U.S.C. section 2680, which carves out certain exceptions to the United States' waiver of sovereign immunity for torts committed by federal employees, the Court rules that section 2680's broad phrase "any other law enforcement officer" covers all law enforcement officers, and not just law enforcement officers enforcing customs or excise laws. In this case, the prisoner plaintiff sued correctional officers who allegedly lost plaintiff's property when transferring him from one prison to another.
http://supct.law.cornell.edu/supct/html/06-9130.ZO.html
Clark v. Edmunds, ___ F.3d ___ (10th Cir. No. 07-4029, filed 1/23/2008). The district court properly granted the Sheriff summary judgment on a 14th amendment excessive force claim. The Sheriff was attempting to take plaintiff's daughter into protective custody based on a suicide threat. Plaintiff turned towards the Sheriff which he interpreted as a threatening action, and he pushed her out of the way. She fell over some furniture and alleged significant, permanent and disabling injuries. The 10th Circuit held the Sheriff's actions were reasonable based on the circumstances, and did not shock the conscience of the court, applying County of Sacramento v. Lewis, 523 U.S. 833 (1998). It held the claim was properly considered under the 14th amendment since the sheriff was not intending to take the plaintiff into custody.
http://ca10.washburnlaw.edu/cases/2008/01/07-4029.pdf
Estate of Larsen v. Murr, ___ F.3d ___ (10th Cir. No. 06-1094, filed 1/2/2008). Officers responded to a late-night 911 call from Larsen who said he was going to "kill someone or himself." Police arrived and found Larsen on the front porch holding a large knife with a blade about one-foot long. Larsen failed to comply with four commands to drop the knife, then raised it over his shoulder and took a step or steps towards an officer on the sidewalk six steps below the front porch. The officer fired twice, hitting Larsen in the chest and killing him. Larsen's estate sued the Denver Police for excessive force and failure to train. The district court granted the defendants summary judgment. The Circuit affirmed, quoting a New York case stating that "a reasonable officer need not await the 'glint of steel' before taking self-protective action; by then it is 'often . . . too late to take safety precautions.'"
http://ca10.washburnlaw.edu/cases/2008/01/06-1094.pdf
State v. Johnson, ___ Kan.App.2d ___, ___ P.3d ____ (No. 96,111filed 8/29/08). The defendant was properly convicted of felony obstruction where the officers thought they were investigating a forgery involving over $500.00, even though it was eventually charged as a false information, also a felony. Merriam officers were called to the Home Depot when defendant was trying to pass a bad check for $483. The manager informed the officer that the defendant tried to buy merchandise worth "approximately $500," with a bad check. When an officer approached the defendant, he took off running and failed to comply with verbal commands to stop and get on the ground. The Court held the issue was controlled by State v. Hudson, 261 Kan. 535, 931 P.2d 679 (1997), and distinguished State v. Seabury, 267 Kan. 431, 985 P.2d 1162 (1999).
http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2008/20080829/96111.htm
State v. Hawkins, ___ Kan.App.2d ___, ___ P.3d ___ (No. 97,657, filed 7/28/2008). Off-duty officers were working at a restaurant in uniform. They responded to a fight in the parking lot. Hawkins approached one of the officers and shot at him, then ran. Officers gave chase and eventually shot Hawkins in the back. Hawkins was convicted of aggravated assault of an officer both as an individual and as an officer, and criminal possession of a firearm. Hawkins alleges the court's response to a jury question was improper, and alleges the convictions were multiplicitious. The court, responding to a jury question about whether the officer had to be the target of the assault (as opposed to a car), said, "To be guilty of aggravated assault someone's act must have been intentional. The intentional act must have placed another in reasonable apprehension of immediate bodily harm." The Court of Appeals reversed, holding that this explanation eliminated the general intent element of the crime - to place someone in reasonable apprehension of immediate bodily harm. It affirmed on the multiplicity issue, finding that Hawkins first pointed and fired a gun toward the officer as he and several others stood outside in front of the crowded restaurant. Shortly thereafter, the officers chased Hawkins down the street, repeatedly identifying themselves as police officers as they commanded Hawkins to stop. As the chase continued, Hawkins turned around and acted as if he was going to shoot at one of the officers. Judge Leben dissented on the issue of whether the district court must resentence the defendant after one of the underlying convictions has been reversed.
http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2008/20080725/97657.htm
Kennedy v. Louisiana, ___ U.S. ___, 128 S.Ct. 2641, ___ L.Ed.3d ___ (No. 07-343, filed 6/25/08, modified and reh. denied 10/01.08). Patrick Kennedy raped his then-8-year-old stepdaughter. A jury convicted him and sentenced him to death under a state statute authorizing capital punishment for the rape of a child under 12 years of age. See La. Stat. Ann. §14:42 (West 1997 and Supp. 1998). The Court holds the statute unconstitutional, and declares that imposing the death penalty where the crime did not result, and was not intended to result, in the death of the victim violates the Eighth and Fourteenth Amendments.
http://supct.law.cornell.edu/supct/html/07-343.ZO.html
Baze v. Rees, ___ U.S. ___, 128 S.Ct. 1520, ___ L.Ed.3d ___ (No. 07-5439, filed 4/16/2008).
Kentucky's three-drug lethal injection protocol does not violate the Eighth Amendment.
http://supct.law.cornell.edu/supct/search/display.html?terms=baze&url=/supct/html/07-5439.ZO.html
United States v. Wittig, ___ F.Supp. 2d ___ (No. 03-40142-JAR, filed 6/12/08). There are three obstacles to issuance of a Rule 17(c) subpoena: relevancy, admissibility, and specificity. Specificity is the most difficult hurdle to overcome. "The specificity requirement ensures that Rule 17(c) subpoenas are used only to secure for trial certain documents or sharply defined groups of documents." "The specificity requirement also prevents the moving party from using the Rule 17(c) subpoena as a license for what the Supreme Court . . . decried as a 'fishing expedition to see what may turn up.'"
http://www.ksd.uscourts.gov/opinions/0340142-929.pdf
Martin v. Kansas Dept. of Revenue, ___ Kan. ___, ___ P.3d ___ (No. 94,033, filed 2/1/2008)(affirming Martin v. Kansas Department of Revenue, 36 Kan.App.2d 561, 142 P.3d 735 (2006)). Reasonable suspicion for a stop is not an issue to be determined in an administrative driver's license suspension proceeding for failure of a breath test. The exclusionary rule does not apply to a administrative drivers license suspension hearing, even if the stop was illegal. The deterrent effect of the rule would be minimal and cannot outweigh the remedial imperative of preventing alcohol-and/or drug impaired drivers from injury or killing themselves or others.
http://www.kscourts.org/Cases-and-Opinions/opinions/supct/2008/20080201/94033.htm
State v. Pollman, 41 Kan.App.2d 20, 204 P.3d 630 (No. 93,947, unpublished, filed 11/21/08, reversed 286 Kan. 881, 190 P.3d 234, decision on remand filed 11/21/08, ordered published 03/04/09). Use of a non-approved PBT device violates K.A.R. 28-32-6 and is inadmissible. Additionally, without the PBT, there were insufficient facts to conclude there was probable cause to arrest for DUI. Pollman and his wife were riding motorcycles through McPherson. Once the wife failed to signal a turn. An officer stopped her and her husband also pulled over. The officer told him to move along, but he decided to stay and play lawyer. The officer smelled alcohol on the wife's breath and began performing a DUI investigation on her. The husband refused to step away when asked. Another officer smelled the odor of an alcoholic beverage on the husband's breath, and he admitted he had been drinking, although he didn't say how much or how long ago. After concluding investigation of the wife, the investigating officer wanted to visit with the husband about his obstruction, asked the husband for ID. Then the back-up officer told him that the husband had been drinking and needed to be checked. The husband admitted drinking a "few beers." The officer gave him a PBT showed .11, then performed FSTs. A later blood test showed a BAC of .10.
http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2008/20081121/93947.htm
State v. Johnson, ___ Kan.App.2d ___, ___ P.3d ____ (No. 99102, filed 12/31/08). In a felony DUI case, the court reversed a jury verdict due to the judge's failure to ask the jury if they agreed on a guilty verdict because K.S.A. 22-3421 requires such an inquiry and there may have been a question whether the verdict represents the agreement of the individual jurors.
http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2008/20081231/99102.htm
State v. Garcia, ___ Kan.App.2d ___, ___ P.3d ____ (No. 99,135, filed 10208). PIK Crim 3d 70.02 which tells a jury they can assume the defendant is under the influence of alcohol if they are above 0.08 is an accurate statement of the law and is not clearly erroneous. Additionally, the district court did not abuse its discretion by shutting down a defense opening statement focusing on the weight to assign to the prosecution's evidence. Opening is to talk about the expected evidence, not the weight to be given to it.
http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2008/20081126/99135.htm
State v. Bussart-Savaloja, ___ Kan.App.2d ___, ___ P.3d ____ (No. 98,527 filed 12/05/08). Barker v. Wingo, 407 U.S. 514 (1972) applies to alleged due process violations in appeal delays. Two factors weight in favor of a due process violation (inordinate delay, reason for delay) and two weight against (first assertion and prejudice). Here the notice of appeal was filed 07/08/05 but appellate counsel was not notified of her appointment until 01/11/07. Overall there no due process violation. Also, admission of a blood test refusal pursuant to K.S.A. 8-1001(i) does not violate a defendant's rights under the Fourth Amendment. Additionally, prior convictions enhancing a sentence do not have to be proved to a jury beyond a reasonable doubt.
http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2008/20081205/98527.htm
State v. Wenzel, 39 Kan.App.2d 194, 177 P.3d 994 (2008), affirmed on other grounds sub nom. State v. Phillips, 289 Kan. 28, 210 P.3d 93 (2009). There is no evidentiary requirement the instrument operator have separately reviewed the manufacturer's operating manual for the instrument because any significant requirements of that manual should be incorporated into the KDHE's testing procedures. This manual is not relevant to the operation or certification requirements of the instrument and therefore should not be discoverable.
http://www.kscourts.org/Cases-and-Opinions/opinions/supct/2009/20090619/96754.pdf
State v. Dukes, 38 Kan.App.2d 958, 174 P.3d 914 (2008). Documents showing the driving record of a defendant certification or calibration of a breath-test instrument or certification of the instrument operator do not constitute testimonial evidence under Crawford v. Washington, 541 U.S. 36, 153 L. Ed. 2d 177, 124 S. Ct. 1354 (2004), and, if otherwise admissible, may be offered without an accompanying witness for cross-examination. Also, if a court imposes more than a minimum fine, it must make explicit findings pursuant to K.S.A. 21-4607(3) showing it has considered the burden of the fine given the defendant's financial circumstances. See State v. Shuster, 17 Kan.App.2d 8, Syl. ¶ 2, 829 P.2d 925 (1992).
http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2008/20080118/96563.htm
Carney v. City & County of Denver, ___ F.3d ___ (10th Cir. No. 06-1490, filed 07/24/08). In an action raising claims of racial discrimination and retaliation under 42 U.S.C. section 1981 brought by plaintiff-black female who sought employment as a police officer, summary judgment for defendant-Denver is affirmed where plaintiff failed to produce sufficient evidence to survive summary judgment on the issues of whether the alleged discrimination and retaliation she experienced were wrought by a municipal custom.
http://ca10.washburnlaw.edu/cases/2008/07/06-1490.pdf
Orr v. City of Albuquerque, ___ F.3d ___ (10th Cir. No. 07-2105, filed 7/8/08)(Orr II). Plaintiffs presented enough evidence to show that Defendants' asserted reasons for applying a sick leave first and disallowing use of compensatory time policy was a pretext for discrimination and violated their rights under the Pregnancy Discrimination Act, 42 U.S.C. § 2000e(k). Evidence of restoring another similarly situated individual's sick leave in the past was admissible to show contradictory behavior that seems to suggest some degree of confusion and mismanagement. See Salguero v. City of Clovis, 366 F.3d 1168 (10th Cir. 2004).
http://ca10.washburnlaw.edu/cases/2008/07/07-2105.pdf
Seegmiller v. LaVerkin City, Utah, 528 F.3d 762 (10th Cir. 2008). A city's decision to privately reprimand a police officer for her off-duty sexual conduct was reasonably related to police department policies and did not violate the constitution. Officer Johnson attended an out-of-town training seminar paid for in part by the City, and had an affair with another officer from a different department. Her angry, soon to be ex-husband (who was subject to a restraining order at some point), first alleged she was raped, but after learning the sex was consensual, became incensed by the City’s failure to discipline her for this conduct and also falsely accused her of having an affair with the City’s police chief, Kim Seegmiller. The City Council placed both Johnson and Seegmiller on administrative leave while it independently investigated the allegations. Washington County also asked Ms. Johnson to step down from her SWAT Team position until the matter was cleared up. News of the matter appeared on the front page of the local newspaper and was broadcast on radio and television stations throughout the state. Four days into the forced leave, the angry, soon to be ex-husband recanted his allegations about Johnson's alleged affair with Chief Seegmiller, but they remained on leave until the next council meeting. In the meantime, the department's own investigation confirmed Johnson's affair with the other officer and resulted in a reprimand for her failure to keep her private "unsullied as an example to all and [to] behave in a manner that does not bring discredit to [the officer] or [the] agency.” Johnson alleged the discipline was a substantive due process violation and violated her fundamental liberty interest “to engage in a private act of consensual sex.” Rejecting a "shocks the conscious" test, the 10th Circuit, using rational basis review, held that Johnson failed her burden to show the governmental act complained of does not further a legitimate state purpose by rational means. "It is well-settled that a police department may, “in accordance with its well-established duty to keep peace, [place] demands upon the members of the police force . . . which have no counterpart with respect to the public at large.” Kelley v. Johnson, 425 U.S. 238, 245 (1976); see also Shawgo v. Spradlin, 701 F.2d 470, 483 (5th Cir. 1983) (holding, under rational basis review, that a police department’s prohibition of off-duty dating and cohabitation did not violate police officer’s rights). The Court also rejected Johnson's "negligent breach of privacy," claim because there was no evidence a city official made the allegations a matter of public record or discussion.
http://caselaw.lp.findlaw.com/data2/circs/10th/074096p.pdf
Zoellner v. Civil Service Board of Leavenworth County, ___ Kan.App.2d ___, ___ P.3d ___ (No. 98037, filed 5/16/08). The sheriff fired a deputy that shot a dog several times, concluding the force was excessive. The civil service board affirmed the termination, but held the former employee should be transferred to a comparable position in the Jail Division. The sheriff appealed to district court, arguing that the Board had exceeded its authority. The district court granted the sheriff summary judgment. The Court of Appeals affirmed, holding that pursuant to K.S.A. 19-4327(d)(3), when a county civil service board sustains a sheriff's dismissal of a deputy, it does not have the authority to require the sheriff to rehire the deputy, create a position for the dismissed deputy, or force another entity to hire the dismissed deputy. "Department" does not mean "different division" in the same sheriff's office.
http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2008/20080516/98037.htm
Herring v. United States, ___ U.S. ___, 129 S.Ct. 1125, ___ L.Ed.3d ___ (No. 07-513, filed 01/14/09). An investigator from Coffee County in Alabama had the warrant clerk from his Sheriff's Office call the warrant clerk at the Dale County Sheriff's Office to determine if Herring, who had been at the Coffee County Sheriff's Office dealing with an impounded vehicle, had an active warrant. The warrant clerk indicated that Herring did in fact have an active warrant in Dale County. The Coffee County warrant officer asked the clerk from Dale County to pull the warrant due to the fact that the investigator was going to pick up Herring on the warrant. The information was relayed to the investigator who immediately arrested Herring and searched him incident to arrest. This search led to the recovery of methamphetamine and a firearm. Shortly after the search and within 15 minutes of the actual call to Dale County, the Dale County clerk called back to Coffee County and reported that there was a mistake and that there was no longer a warrant for Herring. Does the exclusionary rule apply to the methamphetamine and gun that were seized as the result of a mistaken arrest but where the arresting officer was relying on information from another law enforcement agency? The Supreme Court, in a 5-4 decision, held the evidence was admissible under the good-faith rule of United States v. Leon, 468 U. S. 897. The Court reasoned that when police mistakes leading to an unlawful search are the result of isolated negligence attenuated from the search, rather than systemic error or reckless disregard of constitutional requirements, the exclusionary rule does not apply. The fact that a search or arrest was unreasonable does not necessarily mean that the exclusionary rule applies. Illinois v. Gates, 462 U. S. 213 . The rule is not an individual right and applies only where its deterrent effect outweighs the substantial cost of letting guilty and possibly dangerous defendants go free. Leon, 468 U. S., at 908-909. To trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system. The pertinent analysis is objective, not an inquiry into the arresting officers' subjective awareness.
http://www.law.cornell.edu/supct/html/07-513.ZS.html
State v. Yenzer, 40 Kan.App.2d 710, 195 P.3d 271 (2008). A HIPAA violation does not provide for the suppression of evidence as a remedy or sanction. Yenzer went to a law office to pay a debt, and volunteered to the legal assistant that she had a warrant and would be going to a dentist later that day. The dutiful legal assistant called Lawrence police, who were waiting for Yenzer. The receptionist at the dentist's office notified the officer that Yenzer canceled her appointment and rescheduled for one week later. The officer again waited for her. When she showed up, the officer asked for ID. Yenzer gave a false name, then ran from the officer, resulting in her being convicted of obstruction. The Court said that while it did not condone the disclosure of information by the dentist's receptionist, Yenzer did not make a constitutional claim regarding suppression, and nothing in HIPAA requires suppression for a HIPAA violation.
http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2008/20081107/98800.htm
State v. Risinger, ___ Kan.App.2d ___, ___ P.3d ____ (No. 98,218, filed 10/24/08). Having 15 online conversations with what he thought was a 14-year old girl in which he said he wanted to make out, feel around and have oral sex, coupled with driving to her alleged house and knocking on her door was sufficient to establish attempted indecent liberties with a child. Defendants acts went beyond mere preparation and were an overt act toward commission of the crime.
http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2008/20081024/98218.htm
United States v. Schene, ___ F.3d ___ (10th Cir. No. 07-6177, filed 9/29/08). A conviction for knowingly possessing material that contained an image of child pornography that was produced using materials that had been mailed, shipped, or transported in interstate commerce is affirmed where: 1) the evidence was sufficient to show that the images of child pornography were "produced" using materials that had been mailed, shipped, or transported in interstate commerce; 2) the evidence was sufficient to support the conviction; 3) the district court did not reversibly err in admitting into evidence certain testimony regarding gender and homosexuality; and 4) the district court did not abuse its discretion by admitting into evidence images of child pornography, and related exhibits. Agents found evidence on defendant's computer that showed images of young boys, some engaged in homosexual acts with others or with adults. Emails and screen names indicated that "outdoorguy104166" was involved in emailing, copying and viewing these images and files, as well as visiting gay websites. The defendant denied any knowledge of these images on his hard drive, and the government had no direct evidence that defendant was the one that viewed them. Defendant lived with his wife and she had an account on the computer. In addition to denial, defendant defense focused on the fact that his wife could not be ruled out as a suspect. Agents testified that in based on their experience, they had never seen a woman trafficking in homosexual child porn.
http://ca10.washburnlaw.edu/cases/2008/09/07-6177.pdf
Giles v. California, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 07-6053, filed 6/25/08). Admission of a dead domestic violence victim's statements against her killer that were made three weeks prior to her murder and were unconfronted violated the Defendant's right of confrontation under Crawford v. Washington, 541 U. S. 36, 53–54 (2004). California appellate court holdings that Crawford recognized a doctrine of forfeiture by wrongdoing are incorrect. "Domestic violence is an intolerable offense. . . [b]ut for that serious crime, as for others, abridging the constitutional rights of criminal defendants is not in the State’s arsenal." "We decline to approve an exception to the Confrontation Clause unheard of at the time of the founding or for 200 years thereafter."
http://supct.law.cornell.edu/supct/html/07-6053.ZO.html
State v. Scott, ___ Kan.App.2d ___, ___ P.3d ___ (No. 96879, filed 2/22/2008). Defendant was charged with sale of cocaine within 1000 feet of a school. The confidential informant and the police officer were the only witnesses against the defendant. The officer either didn't tape the transaction or the taping device failed. Defendant denied selling cocaine to the CI and wished to impeach him with a pending forgery investigation in which the CI allegedly forged the defendant's checks. The Court of Appeals held that the forgery evidence should have been admitted. Even though the CI had not been convicted of the forgery and it would have been inadmissible for general impeachment under K.S.A. 60-421, it should have been admitted to show the CI's partiality, bias, motive or interest in the outcome.
http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2008/20080222/96879.htm
State v. Dukes, ___ Kan.App.2d ___, ___ P.3d ___ (No. 96,563, filed 1/18/2008). Documents showing the driving record of a defendant certification or calibration of a breath-test instrument or certification of the instrument operator do not constitute testimonial evidence under Crawford v. Washington, 541 U.S. 36, 153 L. Ed. 2d 177, 124 S. Ct. 1354 (2004), and, if otherwise admissible, may be offered without an accompanying witness for cross-examination. Also, if a court imposes more than a minimum fine, it must make explicit findings pursuant to K.S.A. 21-4607(3) showing it has considered the burden of the fine given the defendant's financial circumstances. See State v. Shuster, 17 Kan.App.2d 8, Syl. ¶ 2, 829 P.2d 925 (1992).
http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2008/20080118/96563.htm
State v. Yrigolla, ___ Kan.App.2d ___, ___ P.3d ___ (No. 97,899, filed 1/25/2008). K.S.A. 21-4619 is the specific statute governing expungement of arrest and diversion records and controls over the more general K.S.A. 22-2410 governing expungement of arrest records without conviction. K.S.A. 22-4619 has a 5-year waiting period, while 22-2410 does not.
http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2008/20080125/97899.htm
District of Columbia v. Heller, 554 U.S. ___, 128 S.Ct. 2783, 171 L.Ed.2d 637 (No. 07-290, filed June 26, 2008). The following provisions - D.C. Code §§ 7-2502.02(a)(4), 22-4504(a), and 7-2507.02 - violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes. Washington banned handguns in 1976, saying it was designed to reduce violent crime in the nation's capital. The City Council that adopted the ban said it was justified because "handguns have no legitimate use in the purely urban environment of the District of Columbia." Dick Anthony Heller, an armed security guard, sued the District after it rejected his application to keep a handgun at home for protection. The U.S. Court of Appeals for the District of Columbia Circuit ruled 2-1 for Heller in March. Judge Laurence Silberman said reasonable regulations still could be permitted but said the ban went too far. The United States Supreme Court agreed with the DC Circuit. In his textual analysis of the meaning of the Second Amendment, Justice Scalia wrote, "It is always perilous to derive the meaning of an adopted provision from another provision deleted in the drafting process." ___ U.S. at ___. Later, summing up the Court's ruling, he said, "Undoubtedly, some think the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem. This is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct." ___ U.S. at ___.
http://supct.law.cornell.edu/supct/html/07-290.ZO.html
Wyoming v. United States, ___ F.3d ___ (10th Cir. No. 07-8046, filed 8/26/2008). A Wyoming statute which established a procedure to expunge misdemeanor convictions "for the purposes of restoring any firearm rights lost," but still allowing their use for enhancement of a later crime did not meet the definition of expungement set out in 921(a)(33)(B)(ii) and thus, is insufficient to allow someone convicted of a domestic violence misdemeanor to possess a firearm. In order to qualify as an expunged conviction under federal law, the expungement must wipe out the conviction for all purposes.
http://ca10.washburnlaw.edu/cases/2008/08/07-8046.pdf
United States v. Hill, ___ F.3d ___ (10th Cir. No. 07-3034, filed 8/22/2008). Hill's underlying conviction for criminal possession of a firearm in violation of K.S.A. 21-4201, made him a convicted felon and ineligible to carry a firearm under 18 U.S.C. § 922(g)(1), even though he only received an 11-month sentence under the sentencing guidelines. The federal statute defines qualifying convictions by looking at the possible sentence, not the actual sentence.
http://caselaw.lp.findlaw.com/data2/circs/10th/073034p.pdf
Thomas v. City of Blanchard, 548 F.3d 1317 (10th Cir. 2008). Thomas, a former building code inspector for the City of Blanchard, was fired after barging into a meeting between the city manager and the code director and demanding destruction of an allegedly fraudulent certificate of occupancy issued to a builder who also happened to be the mayor. Thomas alleged that his discharge was in retaliation for his reporting the suspected illegality to the state Bureau of Investigation. The district court granted defendants summary judgment finding that Thomas's statement to the OSBI was part of his professional duties and not protected under Garcetti v. Ceballos, 547 U.S. 410 (2006). The Circuit reversed, finding that reporting allegedly criminal activity was not part of Thomas' duties; was a matter of public concern; and Thomas had a clearly established right to report as a citizen. However, defendant-mayor was entitled to summary judgment as there was no evidence he personally participated in the alleged wrongful termination.
http://ca10.washburnlaw.edu/cases/2008/12/07-6197.pdf
Pagan v. Fruchey, 492 F3d 766 (6th Cir No 04-4414, June 29, 2007), cert. denied Dec 3, 2007 (No 07-420, 128 SCt 711, 169 LEd2d 554, 76 USLW 3286, 3287). Car for Sale. Resident challenged city's ban on parking private cars with "for sale" sign on public street. Held: a fifteen judge ("en banc") panel of the Sixth Circuit ruled 8 -7 that the city had not provided sufficient evidence to show the rule actually advanced the city's interests, and could not be viewed as content neutral, time place and manner rule.
Humphries v. County of Los Angeles, ___ F.3d ___ (9th Cir. No. 05-56467 filed 11/0508). California's maintenance of the California's Child Abuse Central Index (CACI), which is a database of known or suspected child abusers, violates the Due Process Clause of the Fourteenth Amendment because identified individuals are not given a fair opportunity to challenge the allegations against them.
http://caselaw.lp.findlaw.com/data2/circs/9th/0556467p.pdf
State v. Warledo, ___ Kan. ___, ___ P.3d ___ (No. 97,759 filed 8/8/08). Warledo stomped his mother to death and then set her on fire to "get rid of the evidence." A portion of the stomping was captured by the 911 call, where Warledo could be heard saying, "die, die die!" Police arrested him at the scene and transported him to the station. He was shackled and handcuffed to prevent him from hurting himself because he had been banging his head against the shield in the BAT van while waiting to be transported. Warledo was placed in an interview alone while waiting for detectives to arrive, and recorded but not monitored. About five minutes before detectives arrived, he said "I need to call a lawyer. Where's my lawyer?" After detectives arrived, they began swabbing him and collecting his clothes. Several times Warledo made voluntary statements implicating himself, saying things like "I did it, I did it. I will sign anything you want." Later he was Mirandized and repeated his confessions. The Court determined the pre-warning statements were volunteered and were not the product of custodial interrogation nor its functional equivalent. The Court also rejected Warledo's Doyle argument because the tape was redacted by both counsel and no objection was asserted at trial. The court surmised that failure to object may have been a strategy decision to support Warledo's mental illness assertion.
http://www.kscourts.org/Cases-and-Opinions/opinions/supct/2008/20080808/97759.htm
United States v. Burson, ___ F.3d ___ (10th Cir. No. 07-2197, filed 7/11/08). Despite defendant's claims that he had been up for days, was high on methamphetamine and cocaine, and did not understand what was going on around him, Defendant's statements and the video tape of the interview show that Defendant was not impaired to a substantial degree to overcome his ability to give a knowing, intelligent and voluntary waiver. The mere fact of drug or alcohol use will not suffice.
http://ca10.washburnlaw.edu/cases/2008/07/07-2197.pdf
State v. Bale, ___ Kan.App.2d ___, ___ P.3d ___ (No. 96929, filed 5/16/08). Defendant had a few drinks, then got in her car. While backing up, she ran over one of her children, killing him. Defendant became hysterical and was taken to the hospital. The officer investigating the accident smelled an odor of alcohol on her, and began reading her the implied consent advisory. While the officer was reading it, Defendant said, "yes, she was intoxicated and yes, she's responsible for the accident and that she did not mean to hurt her son." That statement was admitted at trial. Defendant claimed it should have been suppressed. The Court disagreed. It said it was either a volunteered statement, and a later similar statement was not a product of custodial interrogation. Defendant had contacted the investigating officer and set up the interview. Defendant drover herself to the police station, was taken to an interview room and told that she was not under arrest. Only one officer was in the room, and Defendant never expressed a desire to leave. The interview was not very long, and Defendant was allowed to leave at its conclusion. Under these circumstances, a reasonable person in Bale's position would not perceive that she was in custody.
http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2008/20080516/96929.htm
United States v. Cronin, ___ F.Supp.2d ___ (No. 2008)(2008 WL 836165 (D. Kan. 2008)..An officer asked a suspect to identify a fanny pack. While the officer's question went beyond questioning attendant to an investigatory detention, they were not acusatory, defendant was not separated from his friends at the time and none of the officers displayed a weapon or made physical contact with the suspect. Thus, he was not in custody for Miranda purposes.
State v. Ventris, 285 Kan. 595, 176 P.3d 920 (2008), reversed and remanded Kansas v. Ventris, 556 U.S. ___, 129 S.Ct. 1841, 173 L.Ed.2d 801 (2009), reh. denied 129 S.Ct. 2853, 174 L.Ed.2d 570, on remand 212 P.3d 162. Admission of the testimony of a under cover informant (cellmate) did not violate defendant's right to counsel under the Sixth Amendment. Ventris killed Hicks. The state used a jail plant and used his testimony in rebuttal to impeach Ventris's testimony. The Kansas Supreme Court held that statements obtained in violation of the Sixth Amendment are not admissible for any purpose. Cf. Harris v. New York, 401 U.S. 22, 91 S.Ct. 643, 28 L.Ed. 2d 1 (1971).
http://www.kscourts.org/Cases-and-Opinions/opinions/supct/2008/20080201/94002.htm
State v. Farmer, ___ Kan. ___, ___ P.3d ___ (No. 91,466, filed 2/1/2008). Farmer shot and killed one individual, and got in a fight with another. During an interview one day later, a detective told Farmer to remember that "God can forgive everything, but . . . you have to be honest." The detective also stated to Farmer that "God wants you to tell the truth." Farmer confessed, but alleged his confession was coerced. The Court disagreed. Noting the detective did not threaten Farmer if he didn't tell the truth, nor did he promise leniency if he did.
http://www.kscourts.org/Cases-and-Opinions/opinions/supct/2008/20080201/91466.htm
In the Matter of L.M., 286 Kan. 460, 186 P.3d 164 (2008). Juvenile offenders have a constitutional right to a jury trial.
http://www.kscourts.org/Cases-and-Opinions/opinions/supct/2008/20080620/96197.htm
Doctor John's v. Whalen, ___ F.3d ___ (10th Cir. No. 07-4131, filed 09/09/08). In an action claiming that defendant-city's ordinance regulating sexually oriented businesses violates the First Amendment, summary judgment on remand for the city is affirmed where the evidence plaintiff submitted to the district court did not cast doubt on the city's rationale for its ordinance under the burden-shifting scheme of City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425 (2002), Step 2.
http://ca10.washburnlaw.edu/cases/2008/09/07-4131.pdf
State v. Cook, ___ Kan. ___, ___ P.3d ___ (No. 98,671, filed 07/28/08). Cook, a sex offender, failed to register his proper address beginning in late 2005. On July 1, 2006, the Kansas Legislature changed violation of the registration statute from a severity-level 10 nonperson felony to a severity level 5 person felony. The state charged Cook with violating the offender registration statue on November 21, 2006. Cook convinced the district court that since the crime occurred prior to July 1, 2006, the charge should be dismissed as ex post facto. Nice try, said the Supreme Court. If the actual crime for which a defendant is being sentenced was committed after the effective date of the new statute, there is no ex post facto violation. Although Cook committed several violations of the act before the amendment, he also violated it several times afterwards. Citizens are presumed to know that the legislature has made certain conduct illegal. See Cheek v. United States, 498 U.S. 192, 199, 112 L. Ed. 2d 617, 111 S. Ct. 604 (1991) (every person is presumed to know the law); State ex rel. Murray v. Palmgren, 231 Kan. 524, 536, 646 P.2d 1091 (1982) (ignorance of law no excuse for violating law); State v. Young, 228 Kan. 355, 360, 614 P.2d 441 (1980) (all persons are presumed to know general public laws of state where they reside, as well as legal effects of their acts). "Cook argues on appeal that it would be unfair for the State to wait to charge someone guilty of a lesser crime until the legislature increases the penalty for that crime. His reasoning would appear to require the State to charge every defendant as soon as it becomes aware of criminal activity. If a sting operation were to turn up evidence that someone was smoking marijuana, the State would not be permitted to wait to acquire additional evidence showing that the individual was also dealing in heroin. In this instance, it does not violate principles of fairness for the State to delay charging an individual who continues to commit a crime or commits new crimes over a period of many months."
http://www.kscourts.org/Cases-and-Opinions/opinions/supct/2008/20080725/98671.htm
State v. Anderson, ___ Kan.App.2d ___, ___ P.3d ___ (No. 98,611, filed 7/28/2008). Offenders must register even if the Sheriff fails to tell them about it. "A familiar rule tells us that ignorance of the law is no excuse. So when the legislature criminalizes something, we may be prosecuted for it even though we didn't know it was illegal. But what happens if the legislature instructs someone to tell us about it? Can we be prosecuted if the person who was supposed to tell us slips up?" The answer is yes.
http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2008/20080725/98611.htm
United States v. Hays, ___ F.3d ___ (10th Cir. No. 07-8039, filed 5/20/2008). Wyoming's domestic battery statute, that prohibits touching "in a rude, insolent or angry manner," does not qualify as a misdemeanor crime of domestic violence that has as an element the use or attempted use of physical force, as required by 18 U.S.C. § 921(a)(33)(A). Force as used in the federal statute must be more than de minimus, and different from the meaning of force in the physics community. Judge Ebel dissents.
http://ca10.washburnlaw.edu/cases/2008/05/07-8039.pdf
Rowe v. New Hampshire Motor Transp. Ass'n, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 06-457, 2/20/2008). A federal statute that prohibits states from enacting any law "related to" a motor carrier "price, route, or service" preempts two provisions of a Maine tobacco law, which regulate the delivery of tobacco to customers within the state.
http://supct.law.cornell.edu/supct/html/06-457.ZO.html
Bridge v. Phoenix Bond & Indemnity Co., ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 07-210, filed 6/9/2008). A plaintiff asserting a RICO claim (18 U. S. C. sec.1964(c)), predicated on mail fraud need not show, either as an element of its claim or as a prerequisite to establishing proximate causation, that it relied on the defendant's alleged misrepresentations. No reliance showing is required to establish that a person has violated sec.1962(c) by conducting an enterprise's affairs through a pattern of racketeering activity predicated on mail fraud.
http://www.law.cornell.edu/supct/html/07-210.ZS.html
State v. Fitzgerald, ___Kan. ___, 192 P.3d 171 (No. 95812, filed 09/12/08). Defendant was pulled over after running stop sign. He was alone in his girlfriend’s truck. His license was suspended. When he was stopped, he immediately called his girlfriend to come to the scene and pick up the truck (apparently realizing that he would not be able to drive on since he knew he was suspended). He was placed under arrest for the DWS and patted down. He had $2,673 in cash in his pockets. He said he made $10 an hour detailing cars and the cash was to pay his rent and bills. The officer searched the car and found methamphetamine, digital scales and several small plastic bags. The girlfriend arrived. She asked if she could drive the truck away. She was told she could not until a more thorough search was performed. The officer asked if she would consent to the search of the truck and she agreed. The second search found no additional evidence, but the defendant did make some incriminating statements to a second officer who arrived on the scene. The Kansas Supreme Court determined, based on the agreement of the parties, the only possible basis for the initial search was probable cause and exigent circumstances. (There is no discussion of this being a “search incident to an arrest” since the defendant was arrested for the misdemeanor of driving on a suspended license). It found that under a totality of the circumstances there was not probable cause to support the search. The State had relied on the officer’s training and experience that large sums of money are usually associated with drug dealing, the traffic violations, the defendant’s quick telephone call to the girlfriend, the large amount of money found in his pocket and his relative modest income as supporting probable cause. The Court found that the only factor that pointed to probable cause was the amount of cash the defendant had on his person, and this factor was weak. It found that the amount of cash was low compared to that found in other cases. The arrangement of the bills was unremarkable (no special packaging). It also found that the State’s argument that the girlfriend’s later voluntary consent made the discovery of drugs inevitable was not supported by the evidence. The Court could not find that the girlfriend’s consent was inevitable had the drugs not already been found in the car. Although her consent may have been voluntary, its inevitability was not proven. Therefore, the evidence found must be suppressed.
http://www.kscourts.org/Cases-and-Opinions/opinions/supct/2008/20080912/95812.htm
United States v. Rodriguez-Rodriguez, ___ F.3d ___ (10th Cir. No. 07-2214, filed 12/23/08). There was sufficient evidence of tandem driving in this case that once the tailing vehicle was stopped and found to contain drugs (over 100 kilograms of marijuana), there was sufficient probable cause to stop the lead vehicle and arrest the driver. A New Mexico officer saw two vehicles traveling in the pre-dawn hours on a lightly-traveled New Mexico highway. A brown pickup was the trailing vehicle, was loaded down in back, and had a tag light out. A red Nissan Sentra was the lead vehicle. Both vehicles had California plates and were driving five miles per hour below the speed limit. The officer followed the vehicles for a while. While doing so, the Sentra would occasionally change lanes, look at the officer's vehicle, then return to the right lane. When the officer lit up the pickup, it did not stop right away, but continued while the Nissan sped off. Officers then radioed ahead and had another officer stop the Nissan six miles down the road. A consent search of the Nissan yielded documents linking the driver to the driver of the pickup. The Nissan driver later admitted that he and the driver of the pickup were working together to transport drugs to California. The Circuit held there was sufficient evidence of tandem driving that a stop of the pickup and the finding of drugs also supplied probable cause to stop the Sentra.
http://ca10.washburnlaw.edu/cases/2008/12/07-2214.pdf
State v. Hoffman, 40 Kan.App.2d 894, 196 P.3d 939 (2008) rev. denied ___ Kan. ___ (2009). Rural Kansas residents who have a contract with a trash hauler to enter into their curtilage and haul away the contents of a dumpster do not abandon their objective expectation of privacy in their trash [What? - don't they lose any subjective expectation when the throw stuff into the dumpster expecting that it will be hauled away?] . Greely County sheriff's deputies had climbed into a trash truck that entered defendants property seven times over several months, then searched the trash once it arrived at the county landfill. Bukaty dissents, finding the trash had been placed for collection so there was no longer a reasonable expectation of privacy.
http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2008/20081126/99755.htm
State v. Tatum, 40 Kan.App.2d 846, 196 P.3d 441 (2008). KBI agents conducted surveillance on the Overland Park store Green Circle Hydroponics and saw defendant leaving with a jug of liquid fertilizer. They later went to his residence and noted a 2d air conditioning unit for the basement and clay balls in the front planter by the porch. Officers did a knock-and-talk, and Tatum let them in, gave consent to search and confessed to growing and selling marijuana. He later claimed that consent was involuntary because agents did not inform him of his right to refuse and said he felt intimidated by the agent's assertion they already had evidence against him. Distinguishing Kermoade, the Court of Appeals held this was a voluntary encounter and consent was valid.
http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2008/20081126/98880.htm
United States v. Arrington, ___ F.3d ___ (10th Cir. 08-4018, unpublished, filed 10/14/08).
[Editor's note: Normally I write my own summaries, but Colin Wood's summary was so entertaining that I copy it here in full].
It was a beautiful day in West Valley City, Utah. Except for the gray rain cloud over Jeremy Arrington. You see, Jeremy longed to get back together with his estranged wife, Jennifer. So, with his mother, Pansy, in tow, Jeremy traveled to Jennifer's workplace. We don't exactly know why Jeremy believed that having his mother with him might somehow bolster his argument to Jennifer that he was the only real man for her.
Then, for a second unknown reason, Jennifer agreed to leave work and ride around with her nutty husband, as her mother-in-law rode in the back seat. Absolutely nothing good can from these facts.
At the first stop, Jiffy Lube, and while each smoked a cigarette discussing their relationship, Jennifer quietly told Jeremy that she had been cheating on him. Jeremy nonchalantly took out a knife…..and stabbed himself in his forearm. Yeah, he stabbed……..HIMSELF! That not putting a damper on the party, the trio traveled to the mall because I guess Mom had decided it was a wonderful time to look through JC Penney's new spring collection. While Mom was inside, Jeremy walked around to the car's trunk, retrieved a gun…… and asked Jennifer to please shoot him. She respectfully declined.
Upon Mom's return to the car, she, Jeremy, and Jennifer headed for a hotel, to rent a room, and "continue their discussion." Unfortunately, upon arriving at the hotel, neither Jeremy nor Jennifer had an ID. So, Mom put up hers, and Jennifer paid for the room. Mom then left the hotel. (I was quite thankful for that last part, because I'm not sure that I could have brought myself to read the rest of the case had I believed Mom had gone to the room with the love birds).
Anyway, though Jeremy wheeled luggage to the room, Jennifer did not intend to stay long because she had to return to work. One thing led to another, and Jeremy again pulled out his gun, placing it to his head and threatened to kill himself i