Sunday, November 11, 2012

Violation of wiretap law requires suppression

Jeb C. Griebat and Carl Folsom, III won in State v. Bruce, No. 105,884 (Kan. Nov. 2, 2012), affirming Judge Brazil's suppression order.  The district court had suppressed evidence obtained as a result of a violation of the federal wiretap law due to improper delegation of authority from the Attorney General.  The state conceded that the violation of the wiretap law and that the violation was of a central provision of the statutory provision.  But the state argued that suppression was not an appropriate remedy for the violation.  The KSC reviewed wiretap law, including its explicit suppression remedy, and disagreed:
Our usual practice is to apply the letter of clear statutes without grafting new, court-created rules onto them to rescue violators. "'A statute should not be read to add something that is not found in the plain words used by the legislature . . . .'" "'When a statute is plain and unambiguous, we must give effect to the legislature's intention as expressed, rather than determine what the law should or should not be.'" We acknowledge that other courts have not shared our reticence about legislating. But the sensitive area of wiretaps seems an especially poor environment for judicial policy making. We thus maintain the position of our earlier cases: When there is a violation of a central provision of the wiretap statutes, exclusion is required by both the federal and state statutes. 18 U.S.C. § 2518(10)(a)(i); K.S.A. 2011 Supp. 22-2516(9)(a).
This ultimate holding eschewing harmlessness analysis implicitly rejects the State's subsidiary argument that the specific procedures and delegation document used here would have met the standard for application of a court-created exception to suppression.
[Update: the state moved to stay the mandate on November 14, 2012.]

[Further update: the state moved for rehearing on November 26, 2012.]

[Further update: the KSC denied the state's motion for rehearing on December 11, 2012 and the mandate issued on December 11, 2012.]


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