Friday, September 26, 2014

Pervasive Fifth Amendment violations support dismissal of grand jury indictment

James L. Eisenbrandt and Christina M. DiGirolamo, won in State v. Turner, No. 102,478 (Kan. Sept. 5, 2014), affirming Judge Lively's dismissal of a Wyandotte County indictment and prosecution for theft and presenting false claims stemming from a citizen-initiated grand jury proceeding.  Judge Lively dismissed the indictment after finding that the prosecutor improperly and repeatedly questioned Mr. Turner in the face of his repeated exercise of his privilege against self-incrimination, that the investigator improperly commented about Mr. Turner's exercise of his right, and that the investigator commented on an unrelated criminal matter.  The KSC agreed with Judge Lively.  The appellate case includes a primer on the constitutional privilege against self-incrimination.  It also includes a lot of information about grand jury practice (and contrasting inquisition practice). 
Granted, a grand jury does not determine the guilt or innocence of a defendant, like a petit jury, but the consequences of a grand jury indictment are serious. See K.S.A. 22-3011(3) ("Indictments found by the grand jury shall be presented by its presiding juror, in the jury's presence, to the court and shall be filed and remain as records of the court."). Moreover, the need to protect an accused individual's constitutional rights before factfinders who are not trained in the law and consequently do not know and understand those constitutional rights is precisely the same with a grand jury as it is with a petit jury.

The KSC concluded that the prosecutor's pervasive and repeated questioning in the face of invocation of the privilege and express commentary on that exercise violated the Fifth Amendment, even in the light of admonition from the district court.  The KSC concluded that targets of grand jury proceedings are entitled to due process and that introduction of extraneous matters violates due process:

[O]ur statutes contemplate that due process mandates that a Kansas grand jury should only issue an indictment based on legal evidence, rather than suspicion or conjecture.
As a result, the KSC agreed that dismissal of the indictment was an appropriate disposition in this case.  Importantly, the KSC held that the state has the burden of proving any constitutional grand jury defect harmless.  When applying a proper harmless error burden, the KSC affirmed the district court:
In sum, the only evidence supporting the indictment was Turner's unitemized bills, testimony from certain individuals who were unaware of the specific nature of work Turner did for BPU, and witnesses who refused to breach the attorney/client privilege in order to answer the grand jury's questions about what work was performed. Contrary to the Court of Appeals' belief, such equivocal nonproof testimony does not cure or trump the egregious errors visited upon these proceedings that polluted the process and denied fundamental fairness.
This may be more important in future Kansas cases with a more robust statutory grand jury procedure in use in some counties.

Searches incident to arrest from 2009 to 2011 probably violate statute

Gregory D. Bell won in State v. Julian, No. 105,695 (Kan. Sept. 5, 2014), upholding Judge Svaty's suppression order in a Rice County drug prosecution.  The case includes a nice primer on the law of searches incident to arrest.  This case turned on the former statute governing searches incident to arrest, which was repealed in its entirety effective July 1, 2011.  Because the search took place before that date, the statute applied.

The KSC observed that it has held that a 2006 amendment to K.S.A. 22-2501(c), which allowed for searches incident to arrest for evidence of "a" crime was facially unconstitutional after Arizona v. Gant in 2009.  As a result, the only constitutional purposes for a search incident to arrest pursuant to the statute after Gant was for protecting officer safety and preventing escape.  The search in Julian did not fall under those categories:
This was a warrantless search of a vehicle for evidence incident to arrest, conducted at a time when searches incident to arrest were governed in Kansas by statute, and the statute in effect at the time did not authorize searches for the purpose of discovering evidence. The search of Julian's vehicle was therefore illegal.

As a result, the KSC affirmed the suppression order.  The practical impact of this decision appears to be that from the time of the issuance of Gant (April 21, 2009) until the statute's repeal (July 1, 2011), any searches incident to arrest for the purposes of discovering evidence (which is most of them) were illegal and the fruits of those searches should be suppressed.

Saturday, September 20, 2014

No reasonable suspicion that assault rifle in small bag

Douglas L. Adams won in State v. White, No. 109,118 (Kan. App. Aug. 29, 2014)(unpublished), obtaining a suppression order in a Geary County drug prosecution.  The COA held that the record supported a finding that an investigatory stop was justified, that it was not improperly prolonged by a canine sniff, and that officers articulated a basis for searching the truck for weapons.  But it went on to reject any claim of voluntary consent and hold that the officer exceeded the proper scope of that investigatory stop:
As we have stated, the police officers had probable cause to search the Ram for a loaded handgun which was illegal to have in the vehicle. An officer thought he had seen the handle of a weapon when White first opened the glove compartment. That probable cause was enhanced and also further defined once the officers found that the item actually was a magazine for an AK–47 assault type rifle that contained live ammunition.
The bag in which the cocaine in this case was found appears to be approximately 8″ by 6″ in size. Obviously, it could not contain an assault rifle. Perhaps it could possibly contain a very small handgun but that is not what the officers had probable cause to search for since the item that gave rise to that probable cause was indicative of a much larger weapon. Moreover, even if probable cause existed to search for a small handgun, once officers lifted and held the bag, it had to be obvious by its light weight and the fact it apparently did not contain any hard objects that there was no handgun inside of it.
The State argues the police officers were also searching for other ammunition and that allowed them to search the bag. However, ammunition was not the direct object of the search. The State cites us to no law that makes it illegal to possess ammunition separate and apart from a weapon or how such possession could lead to discovery of the item that is illegal, namely a loaded firearm. Officers already had the requisite probable cause to search for a loaded weapon in the vehicle. They simply had no justifiable need or reason to search any small container within the vehicle for more ammunition in order to determine whether White possessed a loaded firearm in violation of city ordinance.
As a result, the COA reversed and ordered suppression of the fruits of the illegal search.

[Update: the state did not file a PR and the mandate issued on October 2, 2014.]

Stegall appointed to Kansas Supreme Court

Here is a Topeka Capital-Journal article announcing that Governor Brownback has appointed Caleb Stegall to fill the vacancy on the Kansas Supreme Court created by Nancy Moritz' appointment to the Tenth Circuit.  Here is the governor's press release regarding the appointment.  Judge Stegall has been on the Kansas Court of Appeals since 2013, so we have not yet seen much of his judicial work to this point.  Judge Stegall's appointment to the Kansas Supreme Court will create a vacancy on the Kansas Court of Appeals as well, so we will see even more changes in the Kansas judiciary soon.

[Update: here is a Kansas Supreme Court press release announcing that Judge Stegall will be sworn in on the Kansas Supreme Court on December 5, 2014.]

Friday, September 19, 2014

Limited DUI lookback applies to all sentencing after July 1, 2011

Jay Norton won in State v. Reese, No. 106,703 (Kan. August 29, 2014), obtaining a new sentencing proceeding in a Johnson County DUI prosecution.  At issue was an amended DUI statute--effective July 1, 2011--which provides that the sentencing court is to take into account only those prior driving under the influence (DUI) convictions that occurred on or after July 1, 2001 for enhancement purposes.  Before this statute (and at the time of Mr. Reese's offense), Kansas statute provided for a lifetime lookback for enhancement purposes.  The question was whether that amended statute applied to all cases sentenced after July 1, 2011 (the effective date of the amended statute) or only to cases where the offense occurred after July 1, 2011.  The Kansas Supreme Court made a pretty exhaustive historical review of the DUI statutes in Kansas and adopted the former interpretation:
we find that K.S.A. 2011 Supp. 8-1567(j)(3) provides that the sentencing court is to take into account prior DUI convictions occurring during the limited look-back period and determine at the time of sentencing whether the current conviction is a first, second, third, fourth, or subsequent offense for purposes of imposing a sentence enhancement. Accordingly, a prospective application of the amended statute would be to apply its provisions to every DUI sentencing that occurs on or after July 1, 2011, the statute's effective date.
This appears to be pretty important--often the difference between a felony and a misdemeanor--for any persons who were sentenced for DUI after July 1, 2011.

Erratic driving and a plastic baggie do not make reasonable suspicion

Therese Marie Hartnett won in State v. Kala Jones, No. 106,605 (Kan. August 29, 2014), upholding Judge Quint's suppression order in a Finney County drug prosecution.  Judge Quint had suppressed evidence due to the pretextual nature of a stop.  The COA and the KSC agreed with the state that this was an improper basis for suppression, but also agreed with Ms. Jones that suppression was appropriate due to lack of reasonable suspicion to search.  The KSC agreed with the dissenting COA judge that it would be inappropriate to decide contested facts on appeal.  But the KSC agreed with the COA majority that it could decide the legal impact of uncontested facts on appeal and, when doing so, the record revealed a lack of reasonable suspicion:
Applying these principles to this case, as a matter of common sense, driving in an unusual travel pattern cannot by itself be a license to search a vehicle; if it was, the Fourth Amendment would offer no protection to a driver who is driving in an unfamiliar area and approaches an address from different directions in an attempt to spot a particular house number.
Adding the officer's observation of the clear, empty plastic baggie does not significantly add to the suspicion. Common sense suggests that if the bag had been used to package illegal substances, Jones or her companions would have hidden the bag along with its contents. There is no evidence of an attempt to do so before, during, or after the stop. Furthermore, as the Court of Appeals majority observed, there are a multitude of innocent uses for clear plastic bags and the presence of such a bag is not suspicious, at least by itself.
Granted, suspicion might arise if the corner of the baggie had been cut off in a manner often used for packaging illegal substances or the bag had been tied in a knot. Here, at one point in the officer's testimony before the district judge, he described what he observed as the corner of a baggie. When that description was challenged, however, the officer admitted he could not recall the specific appearance and could not say that it was just a corner. Instead, the officer continued to refer to the clear plastic baggie. Thus, all the record establishes is that there was a clear plastic baggie, an article commonly possessed by law abiding citizens.
Even when the totality of these circumstances is considered, we agree with the district judge that the officer acted on a hunch, not reasonable suspicion.
Therefore, the KSC affirmed Judge Quint's suppression order, albeit for a different legal reason.

Saturday, September 13, 2014

October 2014 Special KSC Docket (Kansas City)

Here are the criminal cases on the KSC docket for October 29, 2014, held in Kansas City, Kansas. This is a special setting of the KSC at the Kansas City Kansas Community College.  For the travelling docket, the KSC has published this information page, including briefs in each of the cases.
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) and archived (here) if you would like to listen in to any of these arguments.

October 29--Wednesday--a.m.

State v. Michael Lewis, No. 108,310 (Johnson)
Direct appeal; Felony murder
Rachel L. Pickering (brief); Kimberly Streit Vogelsberg (argue)
[Affd/Vacd; Rosen; Feb. 20, 2015]
  1. Insufficient evidence of underlying felony
  2. No voluntary waiver of jury trial
  3. Failure to dismiss after destruction of possibly exculpatory evidence
State v. Daren Knox, No. 104,266 (Wyandotte)
Direct appeal; First-degree murder
Rachel L. Pickering
[Affirmed; Luckert; April 10, 2015]
  1. Failure to give lesser-included offense instruction
  2. Improper closing argument
  3. Improper exclusion of defense evidence
  4. Failure to give self-defense instruction
  5. Improper limitation of defense cross-examination

Sunday, September 07, 2014

Puppy dog look is insufficient to detain

Catherine A. Zigtema won in State v. Wilburn, No. 110,250 (Kan. App. Aug. 15, 2014) affirming Judges Welch's suppression orders in a Johnson County fraud case.

I won't try to summarize facts in this case that the district court described as "a pit full of snakes that are swirling around with one another" combined with "a law school final in criminal procedure."  But the detention that led to evidence used in the prosecution was premised on a hunch:
At the time of the stop, the officers had no reasonable and articulable suspicion that Wilburn or Curtis had committed any crime. Pierce testified that the sole basis for the stop was the puppy dog "look." We have no trouble concluding that a puppy dog look is insufficient to establish a reasonable and articulable suspicion of criminal activity. This was nothing more than a hunch. "[A] hunch has never been the benchmark of a proper police seizure." The hunch resulted in Wilburn's arrest and subsequently in Pierce answering Wilburn's phone, which he had seized. Still based upon his hunch, Pierce proceeded to the Chick-fil-A where the whole case started to come together.
The state argued that Mr. Wilburn lacked standing to contest a subsequent search of a car that he did not own.  But the COA held that under the "fruit of the poisonous tree" doctrine," Mr. Wilburn did have standing:
Although Epperson and Olivares-Rangel involve slightly different fact patterns than those at issue here, the principle guiding those cases—namely, that a defendant may challenge derivative evidence from an illegal seizure of his or her person regardless of his or her interest (or lack of interest) in that evidence—is sound when applied to the facts of this case. This case, like Mosley, revolves around an illegal stop and detention, not the search of an automobile. Pierce and Jordan lacked reasonable suspicion to stop Wilburn; as a result of their illegal actions, a string of events unraveled, ultimately leading the detectives to the Kia and the evidence within. The illegality of that stop is unaffected by Wilburn's lack of possessory or ownership interest in the Kia, and the violation of his rights is not somehow cured by this lack of interest. The evidence was uncovered as a result of that initial illegal act and must therefore remain suppressed.
The COA also rejected the state's inevitable discovery theory as too speculative and thus affirmed Judge Welch.

[Update: the state filed a PR on September 15, 2014.]

Saturday, September 06, 2014

October 2014 KSC docket

Here are the criminal cases on the KSC docket for October 21-24, 2014.  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) and archived (here)if you would like to watch any of these arguments.

October 21--Tuesday--a.m.

State v. Luis Aguirre, No. 108,570 (Riley)
Direct appeal; Capital murder
Debra J. Wilson
[Rvd/rmd; Johnson; May 15, 2015]
  1. Failure to suppress statements (Miranda)
  2. Failure to suppress statements (involuntary)
  3. Improper argument
State v. Domingo Soto, No. 109,374 (Riley)
Direct appeal; First-degree murder
Michelle A. Davis
[Affirmed; Malone; May 15, 2015]
  1. Failure to disclose that defense witness available
  2. Failure to give lesser-included offense instruction
October 22--Wednesday--a.m.

State v. Deborah Meeks, No. 106,107 (Wyandotte)
Direct appeal (petition for review); Second-degree (intentional) murder
Ryan Eddinger (brief); Samuel D. Schirer (argue)
[Affirmed; Johnson; Dec. 19, 2014]
  1. Improper exclusion of battered spouse evidence
  2. Improper exclusion of prior violent acts of decedent
October 23--Thursday--a.m.

State v. Brandon Castleberry, No. 106,600 (Lyon)
Direct appeal (petition for review); Distribution
Heather R. Cessna
[Affirmed; Johnson; Dec. 24, 2014]
  1. Insufficient evidence
  2. Failure to instruct on moving violations
  3. Failure to give unanimity instruction
State v. William Jolly, No. 106,680 (Saline)
State's appeal (petition for review)
Janine A. Cox
[Affirmed; Malone; Feb. 20, 2015]
  1. Whether downward departure supported
State v. Brenton Hobbs, No. 107,667 (Lyon)
Direct appeal (petition for review); Aggravated battery
Meryl Carver-Allmond
[Affirmed; Beier; Jan. 16, 2015]
  1. Insufficient evidence of knowingly causing great bodily harm
State v. Joshua Quested, No. 106,805 (Saline)
Motion to correct illegal sentence (petition for review)
Michelle A. Davis
[Affirmed; Luckert; June 26, 2015]
  1. No statutory authority to impose consecutive sentences