Written parole agreement required for parole search

Heather Cessna won in State v. Chapman, No. 111,131 (Kan. App. April 10, 2015), obtaining a suppression order in a Sedgwick County identity theft prosecution.  Mr. Chapman was released on parole and was subjected to a residential search of his home. The COA agreed that the state failed to comply with K.S.A. 22-3717(k)(3), which requires that a parolee "agree in writing" to be subject to search on less than probable cause. The COA held that the notice requirement is a critical component of the jurisprudence that allows for such searches.

The COA also disagreed with the state that this particular search was saved by consent. The COA summarized the relevant facts as follows:

When the officers arrived at Chapman's house, they knocked and Chapman answered the door. Bieberle identified himself and told Chapman he was there to investigate financial crimes. Bieberle asked if the officers could come in and search the residence, but Chapman refused. Bieberle was very persistent and continued trying to convince Chapman to consent to a search, but Chapman declined. Chapman told Bieberle that he was not coming in without a search warrant and went back inside his house. By all accounts, it was not until after Chapman received Evans' phone call that he allowed the officers to search. After speaking with Evans, Chapman opened the front door, walked out, and "unhappily" said something to the effect of, "Come on in. I guess, I'm going to let you search." Bieberle estimated that 45 minutes passed between his arrival and the point at which he actually entered Chapman's house.

The COA held that these facts do not evince consent that was "unequivocal, specific, and freely given without duress or coercion, express or implied."  Therefore, the COA reversed and remanded.

[Update: the state did not file a PR and the mandate issued on May 19, 2015.]