Saturday, June 28, 2014

When cuffed in the patrol car, not in immediate presence of car

Rick Kittel and KU Defender Project intern Rene Ugarte won in State v. Pettay, No. 107,673 (Kan. June 6, 2014), obtaining suppression in a Reno County drug prosecution.  The question was whether, as the KSC had held in some other cases, the good-faith exception saved a pre-Gant search incident to arrest.  The KSC held that, because the statute in effect at the time of the offense only authorized searches incident to arrest within the "immediate presence" of the arrestee, the government could not rely on this statute in good faith when the arrestee had been handcuffed and placed into the patrol car.
The State argues the "immediate presence" limitation is expanded by federal caselaw such as Belton and its progeny to permit a vehicle search even while the arrestee is secured away from the vehicle. But our court has expressly rejected that argument and held federal Fourth Amendment caselaw, such as the Belton line of cases, does not expand the statute's plain language.
. . .
We hold that after Conn and Anderson, a law enforcement officer conducting a search incident to arrest could not objectively reasonably rely on federal caselaw to enlarge the physical scope set out in K.S.A. 22-2501 beyond the statute's plain language, which limited the search to the subject's "immediate presence."
Because the KSC held that the search did not fall into the plain language of the statute, the officer could not have relied on in in good-faith and, therefore, the admittedly illegally obtained evidence had to be suppressed.

As an aside, Justice Johnson concurred, but observed that the majority, like the SCOTUS, seems very focused on deterrence as a basis for the exclusionary rule.  Justice Johnson quotes LaFave for the proposition that there are other independent bases for exclusion beyond deterrence:  one is judicial integrity.
But the rule serves other purposes as well. There is, for example, . . .'the imperative of judicial integrity,' namely, that the courts not become 'accomplices in the willful disobedience of a Constitution they are sworn to uphold.' . . . A third purpose of the exclusionary rule, as stated most clearly by some members of the Court, is that 'of assuring the people—all potential victims of unlawful government conduct—that the government would not profit from its lawless behavior, thus minimizing the risk of seriously undermining popular trust in government.'
It is particularly interesting that in a world where the KSC (and SCOTUS) are very willing to change parties' substantive rights based on its view of wrongdoing on the part of a litigant (like forfeiture by wrongdoing or fugitive disentitlement), that it shouldn't extend the same rationale to the prosecution.  Other states have expressly adopted judicial integrity as a basis for its state constitutional rulings.  Could the KSC ever take judicial integrity into account if it ever discovers the state constitutional prohibition against unreasonable warrantless searches?

No showing to support safety stop

Rick Kittel won in State v. Acosta, No. 109,031 (Kan. App. June 6, 2014), obtaining a suppression order in a Johnson County drug prosecution.  The state had argued that an officer's warrantless contact with a passenger was justified as a "safety stop." The COA disagreed:
Here, the State before the district court at the suppression hearing argued this was a “safety stop.” Thus, the State is bound by what it argued before the district court and cannot present new issues on appeal. It is hard to classify this “stop” as a “stop” since Acosta and his car were already stopped with the hood up when Domes arrived. The record reflects Domes made contact with the driver, Acosta, and determined he needed a jump start, something Domes could not assist with, and clearly from the record Acosta was not in any danger. After talking with Acosta and realizing he could provide no help, Domes decided to contact the passenger by having her open the door to the car for “officer safety.” Prior to contact with the passenger, Domes had already determined there was nothing he could do to render aid to Acosta and his car with a dead battery. At this point, there is no evidence the passenger was in need of help or in peril, and this court should be wary of “permitting the public safety rationale to serve as a pretext for an investigative detention.” State v. Marx, 289 Kan. 657, 215 P.3d 601 (2009). Given the evidence at the suppression hearing, at which Domes was the only witness, the purpose for the stop or encounter ended once Domes determined he could not render any assistance to Acosta and neither Acosta nor Sandoval was in peril.
Because the officer had not articulated a basis for a safety stop, the COA reversed:
Domes testified without any additional explanation that he wanted to talk to Sandoval “for my safety.” Domes did not explain what about the circumstances caused him to be concerned for his safety or why Sandoval might pose some potential threat. Dornes' unexplained conclusion is insufficient.
Domes may have thought he was initially investigating a possible DUI, but the State failed to fully develop that issue at the suppression hearing and only argued this was a “safety stop.”
[Update: the state filed a PR on July 1, 2014.]
[Further update: the KSC denied the state's PR and the mandate issued on November 3, 2014]

Good faith can't save biological material search warrant

Korey A. Kaul won in State v. Powell, No. 102,749 (Kan. June 6, 2014), obtaining a reversal in a Greenwood County vehicular theft prosecution.  The primary issue was whether a search warrant authorized blood, hair, fingerprints, and buccal (cheek) cells.  The district court that had issued the warrant had already found upon review that the affidavit in support of the search warrant had lacked probable cause because it lacked information that DNA evidence had been found in the car.  The only issue was whether the good-faith exception applied to avoid exclusion.

The KSC agreed that the affidavit was lacking, even more so than the district court:
The search warrant application does not clearly identify the crime alleged. Instead, it generalizes that the "[a]ffiant has probable cause to believe and does believe that an offense against the laws of the State of Kansas, has been committed." It goes on to explain only that the biological material sought was located on Powell. 
But other information needed to discern the purposes for obtaining this biological material is left to the imagination. For example, one must gather from the nature of the anonymous tips that the crime at issue is the patrol car theft, and the warrant does not explain how the biological material sought would aid in prosecuting the crime. Clearly, the affidavit supporting the warrant fails to meet the nexus requirement, which is especially troublesome given that the evidence sought from Powell involved intrusions beyond the human body's surface without any justification alleged in the warrant for that intrusion.
With regard to the good-faith analysis, the KSC held that the deficiencies discussed, plus the fact that the information included in the affidavit included anonymous informants made it so lacking, good-faith could not apply:
Knowing the tips were not sufficient, a reasonably well-trained officer would also not believe the affidavit established probable cause. There is the obvious omission of any explanation of how Powell's biological material would aid in apprehending or prosecuting those who stole the police car. In addition, the affidavit relies primarily on anonymous, unverified, and uncorroborated tips containing no indicia of reliability to connect Powell to the theft. And based upon our binding judicial precedent on probable cause, these types of anonymous tips have little value.
As a result, the KSC ordered suppression.

As an interesting aside, the KSC explicitly avoided an alternative ruling that K.S.A. 22-2502, does not authorize seizure of biological materials in any case.  But the KSC noted that "this presents a question of first impression for this court and may merit further legislative consideration given the lack of express statutory language."  Particularly given the KSC's interest in enforcing search and seizure statutes (see blog here for example) if I had a warrant for blood under K.S.A. 22-2502, I would sure be raising this issue.

Saturday, June 14, 2014

Detainer Act claim can be addressed on appeal even in light of district court concession

Adam D. Stolte won in State v. Diederich, No. 109,286 (Kan. App. May 23, 2014), obtaining reversal and remand with directions to dismiss with prejudice in a Reno County identity theft prosecution.  This case involved Mr. Diederich's claim that the state violated the Uniform Mandatory Disposition of Detainers Act.  As is the case in many speedy trial claims, the procedural history is somewhat convoluted on account of multiple charges and prosecutions.  But it was not uncontested that more than 180 days had passed under the Act; the only question was whether its jurisdictional limits had been properly extended:
Our Supreme Court noted in Burnett that this statute provides three ways to extend the 180-day time limit: "(1) the court for good cause in open court grants additional time; (2) the parties stipulate to a continuance; or (3) a continuance is granted on notice to the attorney of record and opportunity to be heard."
Diederich's argument on appeal is a simple one—that the 180-day time limit expired because it wasn't extended under any of the ways authorized by the statute. The State doesn't argue that an extension was granted in one of the ways the statute authorizes. Instead, the State emphasizes that Diederich conceded in the district court that the time during which he was being held in other counties should not be counted.
But Diederich has taken a contrary position on appeal, and because this is a question of the district court's jurisdiction, he can do that. Parties cannot confer subject-matter jurisdiction (the authority to hear a specific claim) on a court by consent, waiver, or estoppel, so the failure to object to jurisdiction doesn't eliminate a jurisdictional problem. And our Supreme Court has applied that rule in a case involving a jurisdiction question under the Uniform Mandatory Disposition of Detainers Act.
Having determined that it could reach the jurisdictional issue, the COA had little trouble resolving it:
The State took no action to obtain an extension of the 180-day time limit before it expired. The district court did not enter any extension of the time limit before it expired. Accordingly, as of February 23, 2012, K.S.A. 22-4303 provided that "no court of this state shall any longer have jurisdiction thereof" and that "the court shall dismiss [the complaint or information] with prejudice."
This case presents a nice contrast between the Detainer Act, which is jurisdictional and most other statutory speedy trial provisions, which are not.

[Update: the state did not file a PR and the mandate issued on June 30, 2014.]

Improper first-degree murder verdict instructions require new trial

Michelle A. Davis won in State v. Dominguez, No. 106, 288 (Kan. May 23, 2014), obtaining a new trial in a Lyon County first-degree murder prosecution.  The state had charged Mr. Dominguez with premeditated first-degree murder and felony murder.  But the district court failed to give the pattern instruction that would have required the jury to consider these charges together.  Instead, the instructions treated felony murder as a lesser-included offense.  The KSC held that such instructions were legally incorrect:
Using this instruction in a case involving both theories of first-degree murder is obviously confusing. Moreover, as argued by Dominguez on appeal, the placement of felony murder after second-degree murder in the italicized portion of the jury instruction did not (1) explain when to consider felony murder or (2) clarify that premeditated murder and felony murder are simply alternative theories of first-degree murder. If anything, the instruction implied that the three charges—premeditated murder, second-degree murder, and felony murder—were to be considered sequentially, with felony murder being the last in the sequence.

In particular, because of the likelihood of improper sequential consideration of the charges, the KSC held the error was clear:
We, therefore, find ourselves with the same concern that arose in Miller, Cribbs, and Young—the jury was either misdirected or lacked direction regarding the order of its deliberations. In the circumstances of this case, that meant the jury was not told it had to simultaneously consider the alternative theories of first-degree murder. Such a situation does not always lead to reversal, however. In Young, this court concluded "there was no reasonable possibility that the jury would have rendered a different verdict if the district court had not made the mistake of calling felony murder a 'lesser offense' of premeditated murder."
We do not reach the same conclusion under the facts of this case for several reasons, however. First, we note that, although not discussed by Dominguez, the trial court also instructed the jury in Instruction No. 21 that "[e]ach crime charged against the defendant is a separate and distinct offense." Instruction No. 21 was based on PIK Crim. 3d 68.07 (Multiple Counts-Verdict Instruction)—an instruction that is not to be given when a defendant is charged under alternative theories of first-degree murder. See PIK Crim. 3d 68.15, Notes on Use. This clearly is a misstatement of the law, since premeditated murder and felony murder are theories relating to the same offense, first-degree murder. Second, there was substantial evidence of the underlying felony, criminal discharge of a firearm at an occupied building. Hence, under the facts of this case, we are firmly convinced the jury would have reached a different verdict. This conclusion is buttressed by the fact the jury empanelled in Dominguez' first trial was unable to unanimously agree on whether Dominguez was guilty of premeditated murder or felony murder.

I think the relationship between first-degree premeditated murder and felony murder will be an recurring issue given the fact that the legislature has extended the distinction in punishment (hard 50 for premeditated and hard 25 for felony murder) and substantively changed the law regarding proof of the two crimes (no lesser included offenses for felony murder).  So, how this law develops in the future is something less than clear.

Monday, June 09, 2014

Tenth Circuit overrules U.S. v. Hill

Melody Evans won recently in United States v. Brooks, No. 13-3166 (10th Cir. June 2, 2014), reversing Mr. Brooks' sentence and enhancement as a "career offender."  The court held that Mr. Brooks' previous Kansas state conviction for eluding police is not a felony for purposes of U.S.S.G. § 4B1.1(a) because the top number in his Kansas guidelines grid box for the offense was not more than 12 months.  In doing so, the court overruled United States v. Hill, 539 F.3d 1213 (10th Cir. 2008), and issued a holding that has far reaching impacts for defendants in federal criminal cases in the Tenth Circuit.  As blogged about here, the Hill decision was ripe for overruling, based on the U.S. Supreme Court's decision in Carachuri–Rosendo v. Holder, 130 S. Ct. 2577 (2010).

As Melody has stated over at the Kansas Federal Public Defender Blog, "the Tenth Circuit decided [in Brooks] that any Kansas conviction that is not punishable by more than 12 months is, generally, not a felony for federal purposes -- not for felon-in-possession cases, aggravated re-entry cases, Armed Career Criminal, some 851 enhancements, and a plethora of guideline factors.  If 12 is the top number in the box, your client is probably good."  Melody's post also includes helpful Kansas sentencing grids, which explain how certain grid boxes are impacted by Brooks.   Here is additional coverage of the opinion by the Sentencing Law and Policy Blog.   

The holding in Brooks is almost identical to the Fourth Circuit holding in United States v. Simmons, 649 F.3d 237 (4th Cir. 2011), which involved a similar holding concerning the North Carolina sentencing guidelines.  In fact, Brooks cited to Simmons in its analysis.  And as a preview of what may come to be in the Tenth Circuit, the impact of Simmons in the Fourth Circuit has been huge, affecting thousands of defendants.  The Fourth Circuit has even held in that this type of career offender challenge can be brought in a 28 U.S.C. § 2255 motion.  See Whiteside v. United States, 748 F.3d 541 (4th Cir. 2014).

But as stated above, it's not just about career offender challenges.  The Kansas FPD Blog has already followed up on the subject here (with a post by Daniel Hansmeier), stating that:
Predicate convictions for felony statutes, including the felon-in-possession statute, 18 U.S.C. § 922(g), and its Armed Career Criminal counterpart, 18 U.S.C. § 924(e), no longer include the many Kansas convictions with presumptive sentences of 12 months or less. The same holds true for the numerous recidivist enhancements in the Sentencing Guidelines (think 2K2.1, 4B1.1, and 2L1.2, to name a few). Moving forward, it is imperative that we scrutinize any Kansas conviction used to enhance a sentence in federal court.
This pretty much sums it up.  If a client has a Kansas state prior conviction in federal court, you need to get the journal entry of judgment for the prior offense to see if the top number in the sentencing grid box is 12 months or less.  If it is, it will not count as "a crime punishable by imprisonment for a term exceeding one year," as the phrase is used in so many aspects of federal criminal law.  But just as important is the impact this has for your former clients.  They will be on the clock to file any kind of Whiteside-like habeas relief based on Brooks.  Their deadline is June 2, 2015.

Saturday, June 07, 2014

Twenty incidents in three locations with eleven opportunites is not unitary conduct

Reid T. Nelson won in State v. King, No. 105,995 (Kan. May 16, 2014), obtaining a new trial in a Leavenworth County rape prosecution.  The KSC detailed the facts presented at trial in some detail as it considered the claim of error in failing to give a unanimity instruction.  The KSC had little trouble finding that the record showed multiple acts:
We agree with King that we are faced with a multiple acts situation in this case. R.B.'s allegation of more than 20 different incidents in three different locations and the State's proof of 11 different opportunities for King to be alone with the children mean we are not dealing with "unitary conduct." Yet King was charged in only four counts, two rape counts, one aggravated criminal sodomy count, and one aggravated indecent liberties count.
While acknowledging that youthful victims often cannot provide mathematical certainty regarding reported offenses, the KSC also acknowledged the inherently prejudicial nature of allowing evidence of more multiple acts than charges without instruction or election:
In this case, we cannot ignore or minimize the prejudice to defendant King from the court's failure to instruct on unanimity and the State's failure to elect which of the multiple acts underlying each of King's charges was to be relied upon by the jury. We have no confidence in the reliability of the guilty verdicts, and we reverse all of King's convictions and remand the case for further proceedings.
The KSC also reached an issue regarding whether the state could admit evidence pursuant to K.S.A. 60-455 of acquitted conduct.  The KSC recognized that collateral estoppel could apply to make such use of evidence improper:
Should this case be retried, and should the State again seek to introduce evidence of J.B.'s past allegations against King, the district judge will have to analyze whether the prosecution in which King was acquitted had at its heart the same issue or issues to be entrusted to the second jury in this case. If so, collateral estoppel should prevent introduction of the evidence. If not, collateral estoppel will pose no obstacle to introduction of the evidence.