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 July 22, 2016)(unpublished), reversing Ms.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].