Wednesday, November 15, 2006

Lots of state's appeals are affirmed

Each week when I look at cases, I first look at all of the published cases and then I look at the list of unpublished cases for reversals. If they are ADO cases we get copies right away and if they are not ADO cases I can look for them on westlaw a week or so. But I have wondered for a while about how many state's interlocutory appeals are affirmed that I'm really never seeing. (The ADO doesn't generally do interlocutory appeals--they are done by local counsel). So I did a search and, lo and behold, there were more than a dozen state's appeals affirmed in 2006. I guess that surprised me a little--many reversals in state's interlocutory appeals are published, but not many affirmances. It just goes to show how much good work defenders are doing out there in the trenches--getting motions to suppress granted-- and then preserving that win on appeal.

Here is a (rather long) list of the cases I found (which is probably not exhaustive). I will try to search a little more regularly! (And, as always, I would really appreciate being updated when you have good things happen in district court--good verdict, good motion, etc. so that I can pass it along to other defenders through this blog).

Just a quick observation--it seems a little odd to me that the state so infrequently petitions the KSC for review of their COA losses in interlocutory appeals (only 1 in 14). Perhaps the state (wisely) wants to avoid making bad law. In any case, remember that we can cite unpublished decisions if you attach a copy to your pleading/motion.


  • Ty Wheeler won in State v. Russell, No. 94,116 (Kan. App. Dec. 30, 2005), affirming Judge Wheeler's suppression of evidence in a Lyon County drug prosecution due to an illegal stop (no reasonable or articulable suspicion for stop). [No petition for review filed].
  • Monte L. Miller won in State v. Giger, No. 94,854 (Kan. App. March 10, 2006), affirming Judge Sanderson's suppression of evidence in a Lyon County DUI prosecution due to an illegal stop (insufficient evidence that car was involved in "exhibition of speed"). [No petition for review filed].
  • Sam Kepfield, Gregory bell, and Bryan Hitchcock won in cases consolidated under State v. Albright, No. 94,022 (Kan. App. March 3, 2006), affirming Judge Becker's suppression of evidence in a Reno County drug prosecution due to an insufficient warrant (minimal surveillance insufficient to create probability that drugs could be found at apartment). [No petition for review filed].
  • Jason Billam and Courtney Henderson won in State v. Taylor, No. 94,382 (Kan. App. March 3, 2006), affirming Judge Tatum's suppression of evidence in a Johnson County drug prosecution due to an improper search incident to arrest (no arrest, so no search incident to arrest; even though probable cause to arrest later, improper search incident to arrest was 2.5 hours before "proper" arrest on probable cause=too remote). [No petition for review filed].
  • Sonya Strickland, a Junction City public defender, won in State v. Penland, No. 94,378 (Kan. App. Feb. 24, 2006), affirming Judge Hornbaker's suppression of evidence in a Geary County drug prosecution (no actual or apparent authoirty to search bedroom; cannot use inevitable discovery where no warrant ever applied for and not certain). [No petition for review filed].
  • John Duma won in State v. Franco, No. 94,946 (Kan. App. May 5, 2006), affirming Judge Boeding's suppression of statements in a Wyandotte County first-degree murder prosecution based on a Sixth Amendment right to counsel violation (Michigan v. Jackson, 475 U.S. 625 (1986) holding that police initated interrogation after assertion of Sixth Amendment right to counsel renders any waiver invalid). [No petition for review filed].
  • Charles O'Hara won in State v. Martinez, No. 93,862 (Kan. App. May 19, 2006), affirming Judge Becker's suppression of evidence in a Reno County drug prosecution due to an improper stop (stop not supported by reasonable suspicion; officers did not see exchange of drugs or other suspicious circumstances supporting stop). [No petition for review filed].
  • Blake Cooper, a Reno County public defender, won in State v. Felty, No. 95,214 (Kan. App. July 7, 2006), affirming Judge Rome's suppression of evidence in a Reno County drug prosecution due to an improper investigatory stop; suspect's actions only supported a hunch, not an objective basis for suspicion of criminal activity). [No petition for review filed].
  • Frederick Meier won in State v. Henning, No. 95,708 (Kan. App. July 14, 2006), affirming Judge Fowler's suppression of evidence in a Lyon County drug prosecution due to an improper traffic stop (no violation to fail to signal upon turn from private parking lot on to street). [No petition for review filed].
  • JoAnna Derfelt won in State v. Kirby, No. 95,109 (Kan. App. Aug. 4, 2006), affirming pro tem Judge Gayoso's suppression of evdience in a Crawford County drug prosecution due to an improper traffic stop (seeing someone exit a truck, enter another vehicle, and return to car suspicious, but not illegal). [No petition for review filed].
  • Michael Bartee won in State v. White, No. 93,687 (Kan. App. Aug. 4, 2006), affirming Judge Anderson's suppression of evidence in a Johnson County drug prosecution due to officers improperly exceeding the scope of a traffic stop (although initial questioning that exceeded scope of traffic stop was based on reasonable suspicion, after officer received explanation of suspicious behavior, reasonable suspicion diminished and detention became illegal). [No petition for review filed].
  • Julie McKenna won in State v. Wilson, No. 95,028 (Kan. App. Aug. 18, 2006), affirming Judge Hebert's suppression of evidence in a Saline County drug prosecution due to warrantless search without proper consent (back yard of duplex is part of curtilage; reasonable expectation of privacy in trash located in back yard area; district court found no consent). [No petition for review].
  • Michael Johnston won in State v. Hollister, No. 95, 827 (Kan. App. Oct. 13, 2006), affiming Judge Schmisseur's suppression of evidence in a Pratt County drug prosecution due to an improper stop (telling officers not to come near him while on private property terminates any voluntary encounter; continued questioning improper seizure, not voluntary encounter). [No petition for review filed].

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