September 2009 Legal Bulletin

I. ARREST

OFFICER CREDIBILITY IMPORTANT WHEN THERE ARE CONFLICTING FACTS

United States v. Charles, ___ F.3d ___ (10th Cir. No. 08-3212, filed 08/11/09). Topeka police suspected open air drug sales at the Oak Tree Square Apartments. Residents would routinely scramble up the stairs when police approached, so officers placed themselves on the second floor and would intercept folks that fled. Ronnie Charles decided to flee upstairs and ran into the officers. Charles pushed an officer and dragged him down some stairs before police subdued Charles. Charles also had a gun in his waistband, and was a convicted felon. Charles alleged the officer just tackled him and searched him without probable cause. 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

II. Civil and Criminal Liability

LAW ON EXTRA-JURSIDICTIONAL STOPS WAS NOT CLEARLY ESTABLISHED IN 2006

Swanson v. The Town of Mountain View, ___ F.3d ___ (10th Cir. No. 08-1105, filed 08/19/09). 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

KNOW AND FOLLOW THE LAW TO AVOID CIVIL LIABILITY – IF CONSENT IS THE ONLY WAY YOU ARE PRESENT IN A HOME, AND THE CONSENT IS REVOKED, YOU NEED TO LEAVE

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 judgment as a matter of law. The trial court denied them and the jury returned a verdict for the officer defendants. The 10^th 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 judgment as a matter of law and to conduct a new trial on damages.

http://ca10.washburnlaw.edu/cases/2009/08/07-2156.pdf

"TAKING PEOPLE TO THE STATION" IS AN ARREST, AND ARRESTS MUST BE SUPPORTED BY PROBABLE CAUSE

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

III. Domestic Violence

DOMESTIC BATTERY STATUTE IS CONSTITUTIONAL

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

IV. DRUGS

UNAUTHORIZED POSSESSION OF LORTAB® IS A FELONY

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

V. DUI

PBT RESULTS ARE INADMISSIBLE IN A DUI CASE

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

EDITOR'S NOTE: Although inadmissible to prove DUI, PBT results are admissible to show probable cause for the arrest – assuming you operated the tester in accordance with the operating manual. Make sure to give a 15-minute deprivation period and that your PBT is at the correct operating temperature.

CHILD ENDANGERMENT AND DUI WITH ENHANCEMENT FOR CHILD IN THE CAR ARE TWO DIFFERENT CRIMES

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, the defense attorney 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. The trial court 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

VII. EVIDENCE

DEFENDANTS HAVE LESS RIGHTS AT PRELIMINARY HEARING THEN THEY DO AT TRIAL

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

EDITOR'S NOTE: Leshay lessens the gloom and doom prediction I made during in-service training based on 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). Still, Melendez-Diaz should lead to the need to hire more chemists.

VIII. INTERROGATION

CUSTODY + INTERROGATION = MIRANDA

State v. Schultz, ___ Kan. ___, ___ P.3d ___ (No. 98,727, filed 07/24/09). Topeka police officers 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. The contact officer told Schultz he could either cooperate and have a respectful search done, or the officers could apply for a search warrant. The officer also asked the suspect to play the judge, and after ticking off the witness statements, the odor of burnt marijuana, marijuana in plain view, and marijuana hidden from view, asked the suspect whether he would issue a search warrant. 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

IX. Search and Seizure

TIPS MAY REQUIRE SOME CORROBORATION BEFORE COURTS WILL CONSIDER THEM RELIABLE – AND MERE NERVOUSNESS MAY NOT BE ENOUGH TO PAT SOMEONE DOWN

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

WARRANT FOR COMPUTER SEARCH WAS SPECIFIC ENOUGH AND NOT STALE

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

THREE-DAY OLD HOTSHEET INFORMATION THAT SOMEONE IS SUICIDAL IS SUFFICIENT REASON TO STOP THEM

City of Salina v. Ragnoni, ___ Kan.App.2d ___, ___ P.3d ____ (No. 101,225, filed 08/07/09). 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.

http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2009/20090807/101225.htm

LEON EXCEPTION APPLIED TO SEARCH INCIDENT TO ARREST OF A CAR AFTER SUPREME COURT'S SPECTACULAR CHANGE OF MIND IN ARIZONA V. GANT

United States v. McCane; ___ F.3d ___ (10th Cir. No. 08-6235, filed 07/28/09). 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.

http://ca10.washburnlaw.edu/cases/2009/07/08-6235.pdf

IF A SUSPECT TESTS POSITIVE FOR MARIJUNA, AND SAYS THEY SPEND ALL THEIR TIME AT HOME, IT IS REASONABLE TO ASSUME THEY SMOKED THEIR MARIJUANA AT HOME

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

IF A RESIDENT GIVES CONSENT TO SEARCH, POLICE DO NOT HAVE TO SEARCH OUT OTHERS WHO MAY OBJECT TO THE SEARCH

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

LIMITED PURPOSE STOPS HAVE CORRESPONDING LIMITS ON THE SCOPE AND DURATION OF DETENTION – AND COURT ALLUDES TO RACIAL PROFILING

State v. Diaz-Ruiz, ___ Kan.App.2d ___, ___ P.3d ____ (No. 100,9206, filed 07/17/09). 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

GANT REQUIRES KANSAS SUPREME COURT TO HOLD K.S.A. 22-2501(c) UNCONSTITUTONAL

State v. Henning, ___ Kan. ___, ___ P.3d ___ (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

EDITOR'S NOTE: As we discussed at in-service training, Gant returns Kansas law to what it was under State v. Anderson, 259 Kan. 16 (1996), where officers can search a car incident to arrest only for evidence of "the" crime, or if the suspect will be within lunge distance of the vehicle at the time of the search. In Gant, the court indicated that the latter situation should be extremely rare. So, once a subject is arrested, secured and removed from the car, you can't search it incident to arrest. Of course you can still search the car if you have a search warrant or some other recognized exception to the warrant requirement applies.