The "Zone" of Victory

We had a published loss a couple of weeks ago, but there was some good law buried in the decision. In State v. Ackward, No. 91,755 (Kan. Feb. 10, 2006), the KSC affirmed a felony murder conviction, including some pretty bad (but not really new) holdings on voluntariness of statements. But there was also a suppression issue related to the seizure of a gun found using other illegally obtained statements. The district court held that the gun would have been found anyway and admitted it under the "inevitable discovery" doctrine. Mr. Ackward argued that it would have only been discovered after another illegal search, albeit one he would have no standing to challenge. The state did not dispute the illegality of the "inevitable" search, but only that Mr. Ackward could not have challenged that search. The KSC engaged in a detailed review of a Seventh Circuit case, U.S. v. Johnson, 380 F.3d 1013 (7th Cir. 2004):

In the present case as in Johnson, the challenged evidence was seized in violation of the defendant’s rights. In this case, the gun was seized in violation of Ackward’s right to counsel. The State’s argument, like the federal government’s, is that the violation is cancelled by the fact that the evidence would have been discovered as a consequence of the illegal search, to which defendant could not object. . . . Hence, as in Johnson, the prosecution’s position is that, because there were two illegal searches, Ackward cannot invoke the exclusionary rule against the use of the evidence so obtained. As we have seen, the Johnson court could see not sense in the government’s position and held that the inevitable discovery of evidence by unlawful means did not render it admissible. We agree. The district court erred in admitting the gun into evidence.

Unfortunately, the KSC went on the apply (the wrong) harmless error test and therefore did not reverse on this ground. But this is still what we call a zone of victory case–one in which we lose, but there is some good law.