Friday, December 09, 2011

Keep your dog on your own property

Michael J. Giardine won in State v. Montgomery, No. 105,328 (Kan. App. Dec. 2, 2011)(unpublished), affirming Judge Hampton's dismissal of a Ford County felony cruelty to animal prosecution at preliminary hearing.  Mr. Montgomery had killed a chihuaua that had come on to his property and acted aggressively toward him and his dog.  The state asserted that he had acted unreasonably in killing the chihuaua.  The COA held that reasonableness is not an element of the exception for killing an animal located off its property:
Based on the unambiguous language of K.S.A. 2012 Supp. 21-4310, a person is generally guilty of animal cruelty if that person intentionally kills a dog and performs the act with evil-mindedness or without a reasonable justification or excuse. Again, however, a person may kill a dog without violating K.S.A. 2010 Supp. 214310 if the dog is not on its owner's or custodian's property and is found injuring or posing a threat to any person, farm animal, or property. The term “reasonable” is simply not present in the relevant statutory provisions.


Because there was no evidence that the threat perceived by Mr. Montgomery was "imaginary, unrealistic, or that it otherwise did not actually exist," the COA held that the charges were properly dismissed at preliminary hearing.

[Update: the state did not file a PR and the mandate issued on January 5, 2012].

Prior convictions do not support reasonable suspicion

W. Scott Toth won in State v. Fowler, No. 105,752 (Kan. App. Dec. 2, 2011)(unpublished), affirming Judge Bornholdt's suppression order in a Johnson County possession with intent prosecution.  The COA quickly found that substantial evidence supported a finding that the stop in this case was measurably extended-as long as 39 minutes--before a drug dog hit on the car.  The COA also held that the officers lacked reasonable suspicion to justify extending the detention:
It appears that Officer Busenbark believed Fowler may have been in possession of drugs based on his criminal history, which included a prior conviction for a drug offense. This court has found that criminal history alone generally is not enough to support a finding of reasonable suspicion. Such information may be considered along with other factors in determining if there was reasonable suspicion of a crime. But even in combination with all other information observed by Officer Busenbark, he did not have an objectively reasonable and articulable suspicion that criminal activity was taking place. Accordingly, we conclude that there was not a legitimate reason to measurably prolong the stop for a defective headlight.


[Update: the state did not file a PR and the mandate issued on January 5, 2012.]

Thursday, December 01, 2011

Avoiding police is not evidence of crime

Lydia Krebs won in State v. Edwards, No. 104,034 (Kan. App. Oct. 28, 2011)(unpublished), obtaining reversal of a Johnson County felony DUI conviction. The case turned on a claim that officers did not have reasonable suspicion to detain Mr. Edwards in a Hy-Vee parking lot:
Therefore, Officer Njoroge needed reasonable suspicion of criminal activity for her initial encounter to have lawfully continued into an investigatory detention for the DUI tests. Officer Njoroge's decision to stop Edwards' car was arguably based on seven factors: (1) that Edwards' car “slowly crossed” 123rd Street; (2) that Edwards' car “accelerated quickly”; (3) that Edwards was attempting to avoid Officer Njoroge; (4) that Edwards pulled the car into a parking lot and went behind Hy–Vee; (5) that Edwards “blacked out” the car and did not park within a parking stall; (6) that there recently had been a robbery at the particular Hy–Vee; and (7) that there recently had been burglaries in the “area.”

In the case before us, none of the seven factors taken alone, or collectively, rises to the level of legally recognized reasonable suspicion. The crux of the State's argument rests on Officer Njoroge's conclusion that Edwards was attempting to “elude” Njoroge. No facts substantiate this conclusion. Moreover, the record suggests no reasonable basis from which Officer Njoroge could draw such an inference. If this factor is gone, the rest of Officer Njoroge's reasonable suspicion topples like a house of cards. Indeed, if the unsupported characterization that Edwards was attempting to “elude” Njoroge is removed from the equation in this case, there is no factual predicate to support what the law recognizes as reasonable suspicion.

Attempting to “elude” a police officer, even at 1 a.m. is insufficient to give law enforcement officers the requisite reasonable suspicion to conduct a Terry stop because attempting to “elude” an officer is not a crime when no illegal activity occurs. The remaining factors that Officer Njoroge relied on, under the totality of circumstances, fail to establish reasonable suspicion.
Because the state did not prove that the officer had articulable facts that collectively provided reasonable suspicion for the stop, the detention and subsequent investigation violated the Fourth Amendment.

[Update: the state filed a PR on November 28, 2011.]

[Further update: the KSC denied the state's PR and the mandate issued on May 21, 2012.]

No proof discovery was inevitable

Michelle Davis won in State v. Richard Jones, No. 103,046 (Kan. App. Oct. 28, 2011)(unpublished), obtaining reversal of a Geary County possession conviction. The state conceded that the search of Mr. Jones' pocket was unlawful, but argued that the evidence would have been inevitably discovered. The COA distinguished attenuation doctrine and the inevitable discovery exception and held that the record did not support a finding of inevitable discovery:
Preliminarily, we note the scant, insubstantial, and hypothetical evidence justifying the application of the inevitable discovery doctrine presented by the State at the hearing on the motion to suppress evidence. As summarized in the Factual and Procedural Background section, important evidence to analyze this question was lacking. Although it was conceded that upon the officers' initial entry into the residence Jones was promptly handcuffed, no evidence was presented regarding the length of time Jones was detained at the residence during the execution of the search warrant. Additionally, the time period during which Jones was transported from the residence and held at the detention center in keeping with the police department's policy to detain individuals until their identity is confirmed is also unknown. Although the district court relied on Lieutenant Life's hypothetical and generic testimony that the FBI comparative fingerprint analysis would have taken at least 1 hour, we are left to speculate how long it actually took in the present case.

The answers to these questions would have provided an evidentiary basis in which to determine whether Jones' continued detention was a lawful or unlawful means to the inevitable discovery of the cocaine. Suffice it to say, it is not an appellate court's role to speculate about such factual matters. It is the State's burden, however, to establish the evidentiary basis for the inevitable discovery doctrine in each particular case.
Because the COA held that the state failed to prove the exception, it held that the continued detention violated the Fourth Amendment and reversed. The inevitable discovery doctrine requires proof that evidence would have been discovered in the case at bar, not just most hypothetical cases.

[Update: the state did not file a PR and the mandate issued on December 1, 2011.]

Failure to prove facts about priors

Washburn student intern Dustin L. Kirk and I won in State v. Hunt, No. 104,529 (Kan. App. Oct. 21, 2011)(unpublished), obtaining reversal of a Sedgwick County criminal possession of a firearm conviction. This case was litigated by bench trial mainly to preserve a suppression issue for appeal. But the criminal possession of a firearm charge required that the state prove that Mr. Hunt had been convicted "within the preceding 10 years." The COA held that the state failed to provide any evidence of that fact:
But the parties' stipulation that the gun was working certainly did not prove when the prior felony conviction had occurred. And the evidence had not done so, either. The evidence on this point was one officer's testimony that “[i]t turned out Mr. Hunt actually had a felony conviction for prior marijuana possession, which would make it a felon in possession of a firearm [offense], and that is what he was booked for.” The officer later confirmed that Hunt had “been previously convicted of a felony.” No one asked when that conviction had occurred.

. . . .

We do recognize, although the State does not make this specific argument, that Hunt was 22 years and 9 months old at the time of this arrest. Thus, for his past conviction to have been more than 10 years old at that time, he would need to have received the equivalent juvenile adjudication sometime before he was 12 years and 9 months old. Is that likely? No. But can we say beyond a reasonable doubt—based solely on the evidence presented at trial—that he didn't receive a juvenile adjudication for the equivalent of felony marijuana possession before he was 12 years and 9 months old? No. Even 12–year–olds can be adjudicated for marijuana possession.

. . . .

We can understand how the State's lapse occurred in this case. Presumably, both parties initially thought all of the elements needed to convict had been proved. But a trial was held, and the evidence wasn't sufficient to prove the defendant guilty beyond a reasonable doubt. The State bears that burden.
This case is a nice reminder that a bench trial, and even a bench trial on stipulated facts, is still a trial. The Due Process Clause still requires proof beyond a reasonable doubt with evidence on the record. It also may be a nice case why the state should support amending the Kansas statutes to reflect that defendants should be able to enter conditional guilty pleas, reserving specific issues for appeal.

[Update: the state did not file a PR and the mandate issued on November 29, 2011.]

Odor of marijuana not sufficient to search shoe

Rick Kittel won in State v. Robert Smith, No. 103,736 (Kan. App. Sept. 30, 2011)(unpublished), obtaining a reversal of a Geary County possession with intent to sell conviction. The issue revolved around the search of a passenger in a car stopped for incorrectly registered tags. When stopped, the detective detected the odor of marijuana on the passenger, they had him get out of the car and conducted a pat-down, which revealed $370 in cash, but no weapons or drugs. The detectives handcuffed the passenger and had him go back to the patrol car and remove his shoes. The COA considered whether this search violated the Fourth Amendment:
Whether the $370, Smith's nervousness, and the odor of perfume when coupled with the odor of marijuana provide probable cause is a close question. Probable cause is judged by the totality of the circumstances and not by judging each factor in isolation. Under current Kansas law the odor of marijuana alone is not enough, and the other factors in Smith's case provide little if any further support.
Because the COA held the detectives did not have probable cause, it held the search violated the Fourth Amendment and reversed the conviction.

[Update: the state filed a PR on October 25, 2011.]

[Further update: the KSC denied the state's PR and the mandate issued on June 13, 2012.]