Criminal refusal statute is facially unconstitutional

Patrick H. Dunn won in State v. Ryce, No. 111,698 (Kan. June 30, 2017), affirming Judge Waller's dismissal order in a Sedgwick County criminal refusal prosecution. The KSC had affirmed the dismissal on February 26, 2016, but the state filed a motion for rehearing including a request to stay proceedings pending a decision from the United States Supreme Court in Birchfield v. North Dakota, 136 S. Ct. 2160 (2016) (here is coverage of that case on SCOTUSblog). After the decision in Birchfield, the KSC granted the motion for rehearing and ordered additional briefing. 

Mr. Ryce had refused to consent to blood alcohol testing and the state charged him with criminal refusal under K.S.A. 2106 Supp. 8-1025. After the additional briefing and argument, the KSC held that its first decision was not substantially altered by Birchfield and that the criminal refusal statute was still facially unconstitutional:

We thus are not persuaded to depart from the holding of State v. Ryce, 303 Kan. 899, 368 P.3d 342 (2016) (Ryce I); we continue our previous interpretation of K.S.A. 2016 Supp. 8-1025. "[A] warrant or some warrant exception . . . might sometimes justify the State demanding a DUI suspect submit to testing, irrespective of any implied consent provided by 8-1001." Ryce I, 303 Kan. at 918. But 8-1025 "does not contain broad language penalizing failure to cooperate with a warrant search or a search conducted pursuant to a warrant exception" and instead criminalizes refusal to submit to a test that could proceed only with consent. 303 Kan. at 918. Birchfield established that the law may be able to compel a DUI suspect to submit to a chemical test for alcohol through a search incident to a lawful arrest or a warrant (or punish resistance through an obstruction of justice charge), but the only conduct criminalized by 8-1025 is withdrawal of implied consent to a search when the police were relying on that consent to justify the search in the first place. Birchfield does not require, or persuade us, to adopt a contrary interpretation of Kansas' statutes.

The KSC also rejected the state's argument that Birchfield established that some blood alcohol testing could be required pursuant to a warrant exception:

As we have discussed, the United States Supreme Court extended the search incident-to-lawful-arrest exception to "warrantless breath tests incident to arrest for drunk driving." But this clarification of search-and-seizure law does not change our decision about the constitutionality of K.S.A. 2016 Supp. 8-1025. As we discussed at length in the preceding section, the key to Ryce I and its sister cases is an issue of statutory interpretation: The Kansas implied consent and criminal refusal statutes are "[p]remised on [the] consent exception" to the warrant requirement. Ryce I, 303 Kan. at 902 (discussing K.S.A. 2016 Supp. 8-1001 and 8-1025, which refer to tests that are "deemed consented to"). The question in Ryce I was whether Kansas could criminalize a suspect's withdrawal of implied consent—not, as in Birchfield, whether warrantless blood and breath tests were reasonable under the Fourth Amendment. 

The State theoretically may enact a statute and, under Birchfield, require submission to a breath test as a search incident to arrest—but that is true for statutes that more broadly criminalize refusal to submit to any test that is constitutionally valid, not for a statute like K.S.A. 2016 Supp. 8-1025 which only criminalizes withdrawal of consent. We think it worthwhile, too, to note that even if we were to depart from this interpretation, Birchfield would not serve to insulate K.S.A. 2016 Supp. 8-1025 from constitutional challenges. For example, officers need not arrest a suspect before requesting a breath test, and 8-1001 contemplates warrantless blood tests—all situations where the search-incident-to-lawful-arrest exception would not apply.

As a result, the district court's dismissal was affirmed.

Threats communicated during attorney-client discussion not admissible at trial for criminal threat

Corrine E. Gunning won in State v. Boatwright, No. 115,075 (Kan App. July 28, 2017), obtaining a new trial in a Sedgwick County criminal threat prosecution. During discussions with his attorney regarding other charges, Mr. Boatwright allegedly made some threatening statements about his ex-fiancée. Defense counsel was alarmed by these statement and disclosed them to law enforcement, which  resulted in the later charges. At trial, Mr. Boatwright objected to admission of the statements made to his attorney. After holding that the question regarding admissibility required separate analysis than the ethical question of whether defense counsel was permitted to disclose, the COA agreed with Mr. Boatrwright regarding admissibility: 

Boatwright's communication to [defense counsel] falls squarely within [the definition of attorney-client communication]. The record shows that the communication between Boatwright and [defense counsel] occurred during the course of [defense counsel's] representation of Boatwright, specifically during Boatwright's meeting with her to discuss a plea offer. Although Boatwright's comment is jarring in isolation, the expression of such frustrations is not an uncommon occurrence in the course of an attorney-client relationship, "particularly in an adversarial context, and may serve as a springboard" for discussion and attempts to dissuade the client on the part of the attorney. In re Grand Jury Investigation, 453 Mass. 453, 458, 902 N.E.2d 929 (2009). In fact, "'[a]bout half of the practice of a decent lawyer is telling would-be clients that they are damned fools and should stop.' Quoted in A. Kaufman, Problems in Professional Responsibility (1976)." McCandless v. Great Atlantic and Pacific Tea Co., Inc., 697 F.2d 198, 201-02 (7th Cir. 1983) (attributed to Elihu Root). Thus, Boatwright's threat was privileged, and no exception allowed its admission. The district court's admission of this evidence was in error.

The state's also claimed that any error was harmless in this case because other evidence which was not objected to would have resulted in conviction. The COA disagreed and held that the objections at trial sufficiently covered all evidence related to the statements and therefore reversed.

[Update: the state did not file a PR and the mandate issued on September 11, 2017.]

Insufficient evidence to support misdemeanor arrest and search

Rick Kittel and KU law student, Caroline Dale, won in State v. Cockrell, No. 114,132 (Kan. App. July 22, 2016)(unpublished), reversing Ms. Cockrell’s Johnson County conviction for possession of methamphetamine. Overland Park police officers were in the parking lot of an apartment complex when their attention was drawn to two people (later determined to be Ms. Cockrell and her boyfriend) arguing with each other about 70 yards away. The officers saw Ms. Cockrell throw an aerosol spray paint can at her boyfriend which apparently struck the boyfriend in the chest, although the evidence that any of the officers actually saw the can strike the boyfriend was questionable. The officers approached to investigate. They ultimately arrested Ms. Cockrell for domestic battery. During a search incident to her warrantless arrest, a small baggie of methamphetamine was found in her pocket. She was charged with possession of methamphetamine (a felony), and domestic battery (a misdemeanor).

This case examines K.S.A. 22-2401(c)(2), the statute governing warrantless arrests for misdemeanor offenses. That statute states that an officer may make a warrantless arrest of a person for a misdemeanor if (1) that officer has probable cause to believe that the person is committing or has committed a misdemeanor, and (2) the officer has probable cause to believe: (A) the person will not be apprehended or evidence will be lost if the person is not immediately arrested; (B) the person may cause injury to self or others or damage to property unless immediately arrested; or (C) the person has intentionally inflicted bodily harm to another person.

Prior to trial Cockrell filed a motion to suppress arguing: (1) the police lacked probable cause to make a warrantless arrest for domestic battery; and (2) even if probable cause existed to believe she committed domestic battery there was no evidence to satisfy any of the requirements of K.S.A. 22-2401(c)(2).

On appeal Cockrell reasserted the issue challenging the legality of her arrest. The COA found there to be sufficient evidence rising to the level of probable cause to believe that Ms. Cockrell committed domestic battery on her boyfriend. The COA then stated:

This finding, however, does not end the inquiry. In the district court and on appeal, Cockrell has complained that even if there was probable cause to believe she committed domestic battery, there was no finding by the district court or evidence to show that the officers had probable cause to believe that one or more of the three factors listed in subsections K.S.A. 22-2401(c)(2)(A), (B), or (C) justified her warrantless arrest. We agree.

[O]ur independent review of the record convinces us there was no testimony from any officer indicating a probable cause belief regarding any of the three statutory factors . . . On this record, the State has failed to make a showing that any of the three factors were applicable to justify the warrantless arrest.

The COA found the arrest for a misdemeanor offense to be illegal and, therefore, the search of her person incident to the illegal arrest was also illegal and should have resulted in the suppression of the fruits of that illegal search. Conviction reversed.

[Update: the state filed a PR on August 18, 2016.]

[Further update: the KSC denied the state's PR and the appellate mandate issued on February 24, 2017].

Person with retained counsel can still seek state payment for expert services

Sarah G. Swain and Cooper Overstreet won in Landrum v. Goering, No. 116,447 (Kan. July 21, 2017), obtaining a writ of mandamus against the Sedgwick County District Court and BIDS ordering the district court to consider payment of investigative, expert, or other services for a partially indigent client represented by a privately retained attorney. The KSC recognized that, when court-appointed attorneys require such services, payment is required under K.S.A. 22-4508. The question was whether this statute or any other provision of law requires the state to pay for such services for persons who are partially indigent and therefore may have retained an attorney. The KSC answered the question in the affirmative:

The parties' arguments focus on the meaning of the first seven words in the statute: "An attorney other than a public defender." Landrum argues the plain language of the statute applies to any attorney other than a public defender and applies to his situation, i.e., where a defendant has retained counsel but does not have the financial ability to pay for investigative, expert, or other services. The Board argues instead that the language refers to only those attorneys who are not public defenders but are part of the Board's system of contract appointed counsel.

The plain language of the statute does not go as far as the Board suggests, and we would have to add words in order to reach the Board's desired reading, such as: "An attorney other than a public defender or retained counsel." This we cannot do. As per the words used in K.S.A. 22-4508, the only attorneys excluded are public defenders. Landrum's privately retained attorney is not a public defender and, thus, is not excluded. As a result, she falls within the category of attorneys who may seek services for a client who is financially unable to obtain such services.

Moreover, except in cases involving a public defender, K.S.A. 22-4508 imposes only two restrictions on a defendant's eligibility for investigative, expert, or other services: The defendant must be financially unable to obtain the services, and the services must be "necessary." See K.S.A. 22-4508. Notably, the financial restriction does not explicitly, or even implicitly, require a finding that the defendant be unable to employ counsel or be unable to employ counsel and obtain the services. An inability to obtain necessary services serves as the only financial condition. 

Because the KSC found the language to be plain, it rejected the Board's other arguments seeking a more limited reading of the statute. The KSC also recognized that there are different statutory provisions for determination of whether a person is able to employ counsel and whether the person can afford services necessary to an adequate defense. As a result, the KSC ordered the district court to hold an ex parte proceeding to determine whether Mr. Landrum could financially obtain necessary investigative, expert, or other services.