Thursday, February 26, 2009

No showing of constructive possession

Bryant T. Barton won in State v. Beaver, No. 100,241 (Kan. App. Feb. 13, 2009), affirming Judge Miller's dismissal of charges after preliminary hearing in a Clay County possession with intent prosecution. The COA agreed with the district court that the state had failed to show probable cause that Mr. Beaver, a social guest, had constructively possessed drugs with the proper intent:
In the case at bar, the only factors inferring Beaver's constructive possession of the seized items were his relative proximity to the seized items and the fact that such items were in plain view. Weighing against Beaver's constructive possession were the following factors: he was not a resident of the home; no evidence was presented showing that his belongings were found in close proximity to the seized items; no evidence was presented that Beaver had ever participated in the sale of drugs; and no evidence was presented that Beaver acted in a suspicious or otherwise incriminating behavior.

In addition, the State failed to show that Beaver was anything more than a social guest on the premises. Yet, the State contends that Beaver's presence at the home and his proximity to the illegal drugs and drug paraphernalia found on the kitchen table amount to constructive possession of those items. The State, however, presented no evidence that the kitchen was used exclusively for the packaging, selling, delivering, or distributing of methamphetamine. Moreover, the State admitted that the kitchen table was cluttered. In doing so, the State implicitly admitted that there were other items on the kitchen table that were not illegal. For example, the trial court questioned whether the methamphetamine was in plain view:

"[F]rankly I don't think the 21 grams of meth was in plain view based on the photograph in Defendant's Exhibit 2. That little three drawer thing is stuck back behind a bunch of stuff and you can't tell what's in the third or middle drawer of it from the vantage point that he was in."

Without more than Beaver's mere presence and proximity to the illegal drugs, there was no probable cause to believe that he was in constructive possession of the illegal drugs and drug paraphernalia found on the kitchen table.
Nice to see "contructive possession" reigned in a little and made to conform with the charge.

[Update: the state did not file a PR and the mandate issued on March 19, 2009.]

Wednesday, February 25, 2009

Coach not guilty

Here is a Topeka Capital-Journal article reporting that Bob Eye won an acquittal in State v. Bales, a Shawnee County aggravated indecent liberties prosecution.

March 2009 KSC docket

Here are the criminal cases on the KSC docket for March 23-26, 2009. These summaries are based on the issues listed in the briefs filed and may not very accurately or fully describe the actual issues in the cases. I recommend you review the briefs yourself if you would like more details. Don't forget, arguments are streamed live over the internet at the appellate court website (here) if you would like to listen in to any of these arguments.

March 23-Monday-a.m.

State v. Abel Salas, No. 99,830 (Sedgwick)
Appeal from denial of DNA test (transfer)
Casey J. Cotton
[Affirmed; Luckert; July 10, 2009]
  1. Whether defendant convicted of second-degree murder entitled to DNA test
Jerry Rowland v. State, No. 98,351 (Sedgwick)
K.S.A. 60-1507 appeal (petition for review)
Michael P. Whalen
[Rvd/Rmd; Beier; November 20, 2009]
  1. Improper summary denial of K.S.A. 60-1507 motion
State v. Rafael Flores, No. 99,841 (Sedgwick)
State appeal (Jessica's Law)
Randall L. Hodgkinson
[Affirmed by summary disposition; March 18, 2009]
  1. Whether district court has jurisdiction to give probation in Jessica's Law case

March 23-Monday-p.m.

State v. Ray Garcia, No. 99,997 (Sedgwick)
Resentencing appeal
Meryl Carver-Allmond
[Affirmed; Nuss; May 22, 2009]
  1. Whether district court had jurisdiction to reopen sentencing on murder conviction on remand to vacate rape conviction
  2. Failure to find crime was sexually motivated beyond a reasonable doubt
State v. Jason Ballard, No. 100,057 (Sedgwick)
Sentencing appeal (Jessica's Law)
Randall L. Hodgkinson
[Affd/Rvd; Nuss; November 6, 2009]
  1. Whether district court abused discretion by denying probation
  2. Whether district court erred by denying jail credit
  3. Whether district court erred by correcting lawfully entered post-release period
March 24-Tuesday-a.m.

State v. Joshua Horn, No. 100,373 (Butler)
Sentencing appeal (Jessica's Law)
E. Jay Greeno
[Sentence vacated; Johnson; May 8, 2009]
  1. Whether the district court erred by imposing a life sentence for attempt
State v. Mary Ann Wright, No. 97,013 (Butler)
Direct appeal (petition for review); Rape
Michelle A. Davis
[Affirmed; Beier; Feb. 26, 2010]
  1. Insufficient evidence of rape of unconscious person
  2. Improper admission of prior bad acts evidence
March 24-Tuesday-p.m.
State v. Nicole Cott, No. 97,955 (Shawnee)
State appeal (petition for review)
Kevin P. Shepherd
[Reversed and remanded; Rosen; May 1, 2009]
  1. Whether aggravated child endangerment statute preempted by DUI statute
State v. Robert Richardson, No. 100,445 (Lyon)
Direct appeal (transfer); Intentional exposure to HIV
Lydia Krebs
[Reversed; Johnson; June 19, 2009]
  1. Whether intentional exposure to HIV is specific intent crime
  2. Insuffuficient evidence
  3. Vagueness

March 25-Wednesday-a.m.

State v. Melvin Trautloff, No. 100,425 (Franklin)
Direct appeal; Rape/Agg Indecent Liberties/Sexual Exploitation
Shawn E. Minihan
[Reversed and remanded; Rosen; Oct. 9, 2009]
  1. Improper imposition of life without parole sentence
  2. Insufficient evidence of alternative means for sexual exploitation
  3. Instruction on sexual explitation broader than charged crime
State v. Juan Bello, No. 99,225 (Finney)
Direct appeal; Agg Criminal Sodomy/Agg Indecent Liberties
Randall L. Hodgkinson
[Aff/Rvd; Johnson; July 2, 2009]
  1. Improper exclusion of evidence of previous victim molestation
  2. Failure to charge or instruct on all elements of aggravated crimes
  3. Disproportionate sentence

March 25-Wednesday-p.m.

State v. Walter Spotts, No. 100,084 (Harvey)
Sentencing appeal (Jessica's Law)
Rachel L. Pickering
[Affirmed; Biles; May 1, 2009]
  1. Disproportionate sentence
  2. Failure to grant downward departure
State v. Roy Seward, No. 100,263 (Saline)
Sentencing appeal (Jessica's Law)
Rachel L. Pickering
[Remanded; Beier; Oct. 2, 2009]
  1. Disporportionate sentence
  2. Failure to grant downward departure
In re C.P.W., No. 101,017 (Ellsworth)
State appeal on question reserved
[Appeal sustained; Luckert; July 24, 2009]
  1. Whether failure to register is a specific intent crime

Friday, February 20, 2009

What emergency?

In companion cases, Sam Kepfield won in State v. Frishenmeyer, No. 99,975 (Kan. App. Feb. 13, 2009)(unpublished), and John Sullivan won in State v. Swansen, No. 100,331 (Kan. App. Feb. 13, 2009)(unpublished), affirming Judge Chambers' suppression orders in a couple of Reno County possession/manufacture prosecutions. The cases involved roommates and application of the emergency doctrine:
The State argues that the officers legally entered the curtilage of [Frischenmeyer's/Swansen's] residence pursuant to the emergency doctrine. According to the State, because the officers were tracking the source of a potentially toxic odor, they were justified in making a warrantless entry onto the property.
. . . .
Here, the evidence shows that [the officers] smelled the odor of anhydrous ammonia in [Frischenmeyer's/Swansen's] neighborhood. Because the officers were in a residential area where anhydrous ammonia is unlikely to be used for legal purposes, they suspected a methamphetamine lab operation. The officers pinpointed Frischenmeyer's residence as the source of the odor, specifically Frishenmeyer's very small backyard. As the district court found, an officer had “isolated the odor and was conducting an investigation at the time of the search of the back porch area within the curtilage of the residence.”
The officers entered the backyard and peeked into two structures attached to the back of the residence. Inside the enclosed back porch, [an officer] observed several items associated with the production of methamphetamine. However, he did not see a source for the anhydrous ammonia. The officers left the suspicious items in the back porch and went around to knock on the front door of the residence. After informing Swansen of the odor, the officers did not alert any other neighbors or call the fire department or a Hazmat team. Instead, they attempted to obtain a warrant to search the residence for evidence of a methamphetamine lab. The officers took several hours to obtain and execute the search warrant, and they did not take any immediate action to address the ill effects of the anhydrous ammonia odor on or to the surrounding neighborhood. In fact, there was no testimony about whether the officers even inquired if other persons were present inside the home who might be suffering from the effects of the anhydrous ammonia fumes.
The State has the burden to establish the applicability of the emergency doctrine in order to uphold the lawfulness of a search. Although we recognize that methamphetamine labs do present a dangerous condition, we conclude the State did not sustain its burden that there was an emergency at hand and an immediate need for the officers' assistance for the protection of life or property. Thus, the officers' warrantless search of the back porch cannot be justified under the emergency doctrine.
The COA went on to reject the state's attempt to save this search on consent and on the good-faith exception:
Finally, the State argues that the Leon good-faith exception should apply to the execution of the search warrant. Once again, however, the State did not make this argument to the district court, and the issue is being raised for the first time on appeal. As we have stated, an issue not raised before the district court generally will not be considered for the first time on appeal.
So, while we often get hit with the procedural default bar, it also works against the state in these interlocutory appeals.

[Update: the state did not file a PR and the mandate issued on March 19, 2009].

Monday, February 16, 2009

No need for welfare check

Matt Edge won in State v. Baker, No. 99,084 (Kan. App. Feb. 6, 2009)(unpublished), reversing a Sedgwick County drug conviction. The COA succinctly summarized its case in the first paragraph:
[P]olice entered [Mr. Baker's] without permission and without a warrant. Police officers justified the warrantless entry based on concern for three young children that police thought might have been left alone in the room. But police may avoid the normal need for a warrant in emergency circumstances only when immediate action by the police is necessary for the protection of life or property. That wasn't the case because the children's aunt was on the motel premises and could have been asked to check on their welfare instead of the police doing so. We must therefore reverse Baker's convictions and order that the evidence found in a search of the room be suppressed.
There are lots of permutations of this sort of rationale on the part of police officers (not just emergency doctrine cases) and it's nice to see a decision that recognizes that the default shouldn't be to conduct a warrantless search--that should be the last resort.

[Update: the state did not file a PR and the mandate issued on March 12, 2009]

Sunday, February 15, 2009

Speedy trial rights apply even when the judge has a baby

Steven A. Jensen won in State v. Miller, Case No. 99,998 (Feb. 13, 2009)(unpublished), affirming Judge Harth's dismissal of charges of misdemeanor DUI and refusal to submit to a preliminary breath test based upon the violation of Miller’s statutory right to a speedy trial. Judge Harth granted Mr. Miller’s motion to dismiss, noting that part of the delay might well have been caused by her being on maternity leave and by the case having been transferred back and forth between judges.

The COA affirmed:

Delays caused by a judge's maternity leave and by the transferring of the case back and forth between judges cannot be attributed to the fault of Miller.

Our review of the record on appeal leads us to conclude the trial court properly dismissed the case based on a violation of Miller's statutory right to a speedy trial.

[Update: the state did not file a PR and the mandate issued on March 19, 2009].

Dude where's my car?

Shawn P. Lautz won in State v. McFadden, Case No. 99,832 (Feb. 13, 2009)(unpublished), affirming Judge Chambers' suppression of evidence in a Reno County meth manufacture prosecution. Judge Chambers found that the search and seizure of Mr. McFadden’s car was illegal and suppressed the evidence from the car as well as Mr. McFadden’s statements obtained after the search. The COA affirmed.

The police smelled anhydrous ammonia coming from the back yard of a house, so they went into the back yard to search for evidence of a meth lab. They observed some meth manufacturing paraphernalia and subsequently applied for a search warrant. Mr. McFadden’s car was parked outside the house. She arrived at the house and got in her car, and the officers, who where waiting to serve a warrant on the house, seized Mr. McFadden’s car when she attempted to leave with a person who had ran from the house. Three hours later, the police secured a warrant for the car and found in it a grinder and pill bottles with white powder.

The COA affirmed the district court’s decision that police had initially conducted an illegal search of the residence’s back yard based on State v. Fisher, 283 Kan. 272, 154 P.3d 455 (2007) (police cannot use illegal intrusion into curtilage of a residence to obtain a plain view of evidence). The COA noted, that “any evidence obtained as a result of the illegal search could not be used to support probable cause for the subsequent seizure and search of McFadden's car.”

The COA also affirmed the district court’s decision that the three-hour seizure of Mr. McFadden's car exceeded the bounds allowed under a proper investigative detention (Terry stop). The COA stated:

To seize the car for a period in excess of the Terry stop, the officers needed probable cause. The only legally obtained evidence the officers had at the time they seized the car, i.e., the odor of anhydrous ammonia emanating from the residence and the officers' observation of Frischenmeyer running empty-handed from the house to the car, did not constitute probable cause to detain the car for an extended period of time.

The COA also held that Mr. McFadden’s incriminating statements obtained after the search of the car were not sufficiently attenuated from the illegal search and seizure of the car.

[Update: the state did not file a PR and the mandate issued on March 19, 2009].

Saturday, February 14, 2009

Don't confuse premeditation with foreseeability

Michelle Davis won in State v. Overstreet, No. 95,682 (Kan. Jan. 30, 2009), obtaining a new trial in a Sedgwick County attempted first-degree murder conviction. The KSC relied on three separate grounds for reversal: clear error for a giving a foreseeablility instruction in a premeditated murder case, clear error regarding an improper supplemental instruction given to the jury during deliberations after the jury indicated it was split on one count, and ineffective assistance of trial counsel for failure to subpoena key witnesses. With respect to the first issue, the KSC held that a foreseeability instruction improperly diluted the state's burden with regard to proving premeditation:
Despite this premeditation requirement, the district court instructed the jury in this case that "[a] person who intentionally aids another to commit a crime is also responsible for any other crime committed in carrying out or attempting to carry out the intended crime, if the other crime was reasonably foreseeable." This foreseeability instruction indicated that the jury need not find that Overstreet possessed the specific intent of premeditation if it found that premeditated murder was a reasonably foreseeable consequence of aggravated assault. In other words, giving the aiding and abetting foreseeability instruction negated the State's burden to prove an essential element of the crime charged: premeditation. This diminished burden is precisely the type of error disproved in Engelhardt. The district court erred when it provided the foreseeability instruction in this case.

In addition, the foreseeability instruction is inappropriate in a premeditated murder case on the basis of logic. Premeditation does not require that a murder (or attempted murder) be reasonably foreseeable; the only relevant question is whether the defendant thought about the murder before engaging in the intentional homicidal act. Conversely, the mere fact that an act is foreseeable does not mean that the defendant has premeditated his or her actions. In short, the fact that it may be foreseeable that someone may die as a result of a particular course of action does not give rise to the conclusion that the cause of death was premeditated.
With respect to the IAC claim, the KSC agreed with the COA that trial counsel's performance was deficient, but disagreed that Mr. Overstreet had failed to prove prejudice:
The crux of Overstreet's defense at trial was that he was not the driver during the shooting. Overstreet's defense counsel had reviewed the police reports and had discovered that both Bauder and Mott identified Walker--not Overstreet--as the driver in this case. Both Bauder and Mott were listed as potential witnesses the State might call in the initial complaint and information.

Defense counsel testified at the hearing on remand that he had hired a private investigator to find and question Bauder and Mott; this investigator was apparently able to contact Bauder but was unable to contact Mott. Because counsel "figured [the State] would call [Bauder and Mott] as witnesses," he "didn't need to contact them." Only when the State did not call either man as a witness and the court granted the State's hearsay objections did defense counsel recognize that he needed to subpoena Bauder and Mott. The only personal contact defense counsel ever had with Bauder before the witness testified was in the courtroom library on the day of Bauder's testimony--more than 8 months after the incident occurred. Bauder then incorrectly stated that he had identified Overstreet on the night of the shooting.

If the primary theory of the defense was that Overstreet was not the driver, then it was objectively unreasonable to not interview the two people who had made positive identifications of another person as the driver on the night of the shooting. It was unreasonable not to subpoena the two men as witnesses prior to trial. It was unreasonable to fail to adequately prepare the one man who eventually did testify. These decisions cannot be strategically explained and fall below the constitutionally-guaranteed standards of representation in a criminal case.

Moreover, contrary to the Court of Appeals' conclusion, we conclude that defense counsel's deficient performance prejudiced the defendant's right to a fair trial. On two separate occasions after the case was submitted to the jury for deliberations, the jury asked for a readback of Bauder's testimony regarding whether he saw Overstreet at the scene of the shooting. The jury also asked for a readback of McCall's testimony regarding his identification of Overstreet as the driver. When the jury requested additional summation on the second day of deliberations, one of the questions of clarification requested was whether Overstreet had to be the driver of the Tahoe to be convicted of aiding and abetting the two crimes.
Three issues, three bases for reversal!

Actually, you can sequester witnesses

Patrick H. Dunn won in State v. Brinklow, No. 96,231 (Kan. Jan. 30, 2009), obtaining a new trial in a Barber County aggravated indecent liberties prosecution. The KSC agreed that the district court's failure to exercise it's discretion regarding sequestration of witnesses required a new trial:

The mother was present during A.C.'s testimony in which A.C. described the particulars of the alleged criminal acts. In the direct examination of the mother, the prosecutor did not ask the mother to relate what A.C. had told her about the alleged abusive touching. Rather, the prosecutor asked, "Did she tell you, or describe for you the same thing she testified to earlier today?" The response was simply, "Yes." The mother did not merely tailor her testimony to match that of A.C.; the mother adopted A.C.'s testimony by reference. The prosecutor's question was tantamount to asking the mother if her testimony would be the same as A.C.'s testimony. One would be hard-pressed to conceive of a more direct example of one witness tailoring his or her testimony to that of another witness.

Moreover, at a pretrial motion conference, Brinklow's attorney advised the district court that part of the defense strategy was to establish that the mother had a great deal of influence over A.C. Obviously, the defense had to establish that the mother and A.C. were acting together in making a false accusation. That task was hampered by both witnesses being in the courtroom together, so that the mother could simply adopt her daughter's testimony.

In addition, Brinklow complains that he was prejudiced by the trial presence of Betty Jo Mitchell. She testified to being present in the Brinklow home on May 27, 2001, when A.C. related the accusations to the police officer. However, the police officer did not place Mitchell at the residence during the interview. Brinklow argues that he was prevented from challenging Mitchell's presence at the residence by testing her knowledge of what transpired that night because Mitchell was able to learn what happened by observing the testimony of both A.C. and the mother. The Court of Appeals did not specifically address this complaint. Given our ruling on the mother's testimony, we need not analyze the prejudicial effect on Mitchell's testimony.

In conclusion, the district court erred in ruling that it did not have authority to sequester witnesses and consequently erred in failing to exercise its discretion to determine whether witnesses should have been sequestered in this case. The record reveals that the State elicited testimony from the mother which was directly tailored to the testimony of the victim. We cannot declare that the defendant did not suffer any prejudice from the trial court's error.

The KSC also held that the prosecutor engaged in several instances of misconduct including telling the jury "Sometimes you just know."
If a jury cannot convict because common sense tells it the defendant is guilty and cannot convict because it is simply reasonable to believe the defendant did it, then it is likewise improper to convict because the jury just knows that the defendant did it. Such a suggestion is contrary to the concept of proof beyond a reasonable doubt and approaches, if not reaches, the level of gross and flagrant argument. Further, the prosecutor's repeated use of the phrase, "sometimes you just know," indicates an intentional theme which would not rule out the ill-will factor. Moreover, given the absence of forensic evidence and the victim's initial recantation of the allegations, one cannot unequivocally declare the evidence overwhelming and unaffected by the impropriety in the closing argument.
The combination of sequestration error and misconduct resulted in reversal.

Friday, February 13, 2009

Acquittal in Salina

Here is a Salina Journal article reporting that C. Richard Comfort won an acquittal in State v. Hulsey, ending a Saline County indecent liberties prosecution.

Involuntary absence during testimony at trial is structural error

Michael P. Whalen won in Hilson v. State, No. 99,421 (Kan. App. Feb. 6, 2009)(unpublished), affirming Judge Powell's grant of a new trial in a Sedgwick County aggravated kidnapping/aggravated sexual battery case. The habeas claim related to the fact that the trial court continued with Mr. Hilson's trial after he had to leave to courtroom to go to the restroom.
Here, the State does not dispute the movant's absence during his jury trial was involuntary and at a “critical stage” of the proceedings and that the trial court erred in proceeding in the defendant's absence. According to the State, the only question is whether the error was harmless. On the other hand, the movant argues we should first consider whether the error should be considered structural error, which would preclude a harmless error analysis.
. . . .
Here, the factual situations presented is much closer to [State v. Calderon, 270 Kan. 241, 13 P.3d 871 (2000)], than the factual situation in Mann, Lopez, or Engelhardt. In fact, the movant's exclusion here may more directly implicate the movant's rights
under the Confrontation Clause than did the situation even in Calderon because the movant here was absent during the testimony of a State's witness. The challenged error here is at least as much a violation of the letter and spirit of the Confrontation Clause as being unable to understand closing arguments, if not more so.
We conclude, under the specific facts of this case, the challenged error was structural in nature and denied the movant a fair trial.
[Update: the state filed a PR on March 9, 2009.]

[Further update: the KSC denied the PR and the mandate issued on September 8, 2009.]

Thursday, February 12, 2009

Acquittal in exposure to HIV case

Here is a Hutch News article reporting that Kelly Driscoll won an acquittal in State v. Bailey, a Reno County intentional exposure to HIV prosecution.

Wednesday, February 11, 2009

Probation is possible under original Jessica's Law

Sarah Morrison and I won in State v. Gracey, No. 99310 (Kan. Feb. 6, 2009), holding that Jessica's Law defendants are eligible for probation when their crime was committed before July 1, 2008. The court held, "[f]or defendants convicted of certain sexually motivated or sexually violent crimes committed before July 1, 2008, and sentenced pursuant to K.S.A. 21-4643(d), a departure sentence includes both durational and dispositional departures." The court reversed Gracey's sentence and remanded for resentencing consistent with the opinion.

The court also held that the 55-month sentence ordered at the original sentencing hearing was not illegal, even though the sentence was less than the presumptive range on the guidelines grid. So, for an off-grid Jessica's Law offense, the sentencing court can durationally depart to the KSG, and once on the grid, the court can depart below the presumptive grid box (as well as give probation if the offense was committed before July 1, 2008).

Wednesday, February 04, 2009

Must know it's there to knowingly remove it

Reid Nelson won in State v. Davison, No. 99,229 (Kan. App. Jan. 30, 2009), reversing a Shawnee County removal of a theft detection device conviction. The COA quickly dismissed the state's claim that this appeal was moot because of Mr. Davison's death and held that the statute in question requires knowledge of the theft detection device and intent to facilitate theft. Because the instruction given to the jury omitted these elements, (the PIK instructions have since been modified), the COA reversed:
This same rationale compels us to conclude that the term "intentionally" found in K.S.A. 21-3764(d) requires that for a defendant who removes merchandise from a package to be guilty of violating the statute, he or she must have knowledge of the theft detection device, in addition to having the specific intent to facilitate a theft, as interpreted in Armstrong. It is difficult to imagine that one could be guilty of "intentionally removing the device" from merchandise if one does not know the device is on the merchandise or in the package that contains it.

Because the trial court's elements instruction in this case contained no reference to the elements of knowledge and specific intent required by K.S.A. 21-3764(d), Armstrong, and our conclusion above, it was not a correct statement of the law and was erroneous. While not binding on this panel, we note that another panel of this court also found the same unrevised PIK instruction to be erroneous, and we find its reasoning persuasive.
So if you have any of these cases, look carefully at the instructions.

As an aside, it seems interesting that the COA correctly observes that it is difficult to imagine that a person can be guilty of intentionally removing a device if one does not know the device is on the merchandise, but steadfastly asserts that a person does, AS A MATTER OF LAW, knowingly possess and control a controlled substance, even though the amount is too small to use and too small for a chemist to measure. Sorry, just my editorial there.

[Update: the state did not file a PR and the mandate issued on March 5, 2009.]

Probationers have some liberty interests

Patrick H. Dunn won in State v. Bennett, No. 98,038 (Kan. Jan. 30, 2009), holding that a probation condition subjecting probationers to searches for no reason is unconstitutional under the Fourth Amendment and the Kansas Constitution. (Here is the previous blog entry on this case). The KSC recognized that SCOTUS cases have held that parolees can be subjected to such conditions, but distinguished probationers from parolees:
Although this court is not bound by a federal court's interpretation of Kansas law, the Tenth Circuit's reasoning in Freeman is persuasive. The Kansas Legislature has not authorized suspicionless searches of probationers or parolees. Kansas' procedures for parole supervision specifically inform parolees that they have an expectation that searches will not be conducted unless an officer has a (reasonable) suspicion that such a search is necessary to enforce the conditions of parole. Put another way, parolees in Kansas have an expectation that they will not be subjected to suspicionless searches.

It logically follows from this conclusion that because probationers have a greater expectation of privacy than parolees, searches of probationers in Kansas must also be based on a reasonable suspicion. Thus, the condition of Bennett's probation subjecting him to random, nonconsensual, suspicionless searches violates his rights under the Fourth Amendment and Kansas Constitution Bill of Rights.

The State argues that imposing a reasonable suspicion standard in all probation searches will thwart the purposes of community corrections officers, as corrections officials will no longer be permitted to search a probationer's residence or belongings when the officer conducts probation visits. This argument fails to recognize that although probationers' privacy rights are more limited than are the rights of free citizens, probationers do enjoy some expectation of privacy in their persons and property. Law enforcement efforts must be reasonably calculated with reference to the probationers' privacy rights. Reasonable suspicion is not an overly-burdensome standard of proof.
This may be an important defense in probation revocation cases.

Monday, February 02, 2009

Attention Jessica's Law attorneys

Recently, the ADO has been trying to get the KSC to consider the issue of whether a Jessica's law sentence is a cruel or unusual punishment under Section 9 of the Kansas Bill of Rights (and/or the Eighth Amendment of the US Constitution). The argument is based on State v. Freeman, 223 Kan. 362, 574 P.2d 950 (1978) and State v. McDaniel, 228 Kan. 172, 612 P.2d 1231 (1980) ("Section 9 of the Kansas Bill of Rights may be invoked against an excessive or disproportionate sentence. The nature of a sentence as cruel or unusual encompasses duration.").

A life sentence under Jessica's Law may be disproportionate under the second prong of the Freeman analysis because the court is supposed to determine whether more serious crimes are punished less severly. For example, a Jessica's Law defendant could get a life sentence for fondling or touching a 13-year-old, while the same defendant could get about 10 years for intentionally murdering the same 13-year-old (second-degree intentional murder, criminal history I). The ADO's argument is that this is disproportionate punishment and unconstitutional.

The KSC has not yet reached this issue because it was not raised in the district court. The court has pointed to the fact that the first prong of the Freeman analysis is based on the facts of each case (it is based upon the nature of the offense and the character of the offender).

In short, if you have a Jessica's Law case that proceeds to sentencing, you should file a motion and have a hearing on whether a life sentence would be disproportionate in your client's case (especially if the client's criminal history is low). If you need the relevant law to put in your motion, contact me at the ADO.