KHP Trooper discredited

Kevin A. Luibrand and Timothy E. Austin (New York attorneys) won in U.S. v. Murphy and Webster, No. 8:10-CR-312 (N. Dist. N.Y. April 19, 2011) obtaining suppression of evidence and statements in a federal drug conspiracy trial that involved a stop by a Kansas Highway Patrol trooper on I-70 near Alma. I have driven by this ruse several times on the way to and from Salina. Officers place signs that say "Drug Checkpoint Ahead" and "Drug Dogs in Use Ahead" near an exit on I-70 that essentially leads to nowhere (just a ranch and some back roads). The assumption is that persons seeing the signs who have drugs will get off at the exit, so officers lie in wait.

The trooper in this case testified that he saw the subject car fail to signal the lane change when the car exited. But the federal district judge, after reviewing the Government's evidence and evidence produced by the defendants in detail, held that such an observation was not possible:

Based on the findings of fact above, Trooper Stahl’s testimony that he observed Webster commit a traffic violation is not credited and the Government has offered no other objectively reasonable basis to justify the stop. As a result, the stop is unconstitutional.

The Government tried to show how other facts discovered after the stop justified detention, but the judge held that any such discovery was tainted by the initial illegal stop and not sufficiently attenuated to independently justify the detention. As a result, the judge suppressed the evidence.

I wonder how common it is for police officers to just make up facts (like failure to signal or bad tag light)? In any case, this case shows how little it takes to really invade a person's privacy in the name of the war on drugs.

Hawaii has a state constitution

The Hawaii Supreme Court held in State v. Torres, No. 28583 (Haw. April 15, 2011), that evidence obtained by federal officials in conformity with Fourth Amendment still has to pass muster under the Hawaii Constitution in order to be admissible in state courts. The decision does a nice job of explaining (contrary to so much SCOTUS law), that the exclusionary rule does much more than just deter police misconduct:

As recounted, unlike a conflicts of law approach, an exclusionary rule analysis requires us to consider the principles served by that rule. Bridges identified three purposes underlying our exclusionary rule: judicial integrity, protection of individual privacy, and deterrence of illegal police misconduct.

It's sort of interesting, because the SCOTUS has recognized principles such as judicial integrity when it comes to excluding defense evidence upon lack of proper notice of defense, but fails to recognize it when it comes to the Fourth Amendment. Nice to see a state court take a broader approach.

I wonder if mid-19th century Kansans thought privacy from government intrusion was an important principle?

Acquittal in Lawrence

Here is a Topeka Capital-Journal article reporting that John Kerns won an acquittal in State v. Walker, a Douglas County attempted murder prosecution.

Bruns appointed to COA

Here is a Topeka Capital-Journal article reporting that the governor appointed District Judge David Bruns to fill a vacancy on the COA. This will, of course, create a vacancy in the Third Judicial District.

Consumer dispute not theft by deception

Lydia Krebs won in State v. Hulsey, No. 103,302 (Kan. App. April 8, 2011)(unpublished), obtaining a reversal of a Johnson County felony theft conviction. The circumstances of the case involved a contract to build an in-ground pool and pool house:

We agree with Hulsey that the evidence was insufficient to establish that he obtained control over Cowick's property through a false statement or representation that he had obtained the necessary permits for the project. Cowick admitted Hulsey never explicitly stated he had obtained the permits, outside the contractual promise to do so. The contract did not require Hulsey to obtain the necessary permits and licenses before beginning construction and the evidence indicated he could have obtained the permits anytime before construction, was completed. The contract required Cowick to pay Hulsey $49,000 after the foundation was completed. There is no question that the foundation was completed on April 24, 2007, so Hulsey was entitled to receive a payment from Cowick on that date. Although Hulsey may have breached a future promise to perform under the contract, he made no misrepresentations about present or past existing facts.

In this case, the State exercised its discretion to prosecute Hulsey for a felony offense under the Kansas Criminal Code. It appears that the dispute may have also been governed by the Kansas Consumer Protection Act (KCPA). Although the criminal code is strictly construed in favor of the accused, the KCPA is liberally construed to protect consumers from suppliers who commit deceptive acts and practices. [T]he definition of “deceptive acts and practices” is much broader than the definition of “deception” under the criminal code. Whereas a criminal charge must be proven beyond a reasonable doubt, a KCPA claim must only be proven by a preponderance of the evidence.

We are mindful of our obligation to review the evidence in the light most favorable to the prosecution. Even applying this standard, we conclude the evidence presented at trial was insufficient to convince a rational factfinder of Hulsey's guilt beyond a reasonable doubt. Hulsey's conviction of theft by deception is reversed and his sentence is vacated.

This is a nice description (and application) of the difference between criminal fraud and consumer protection.

[Update: the state file a PR on May 9, 2011.]

[Further update: the KSC denied the state's PR and the mandate issued October 7, 2011.]

Failure to give instruction requires reversal

Michelle Davis won in State v. Plummer, No. 101,684 (Kan. App. April 11, 2011), obtaining a new trial in a Reno County aggravated robbery case. During trial, Mr. Plummer requested a lesser-included offense instruction for theft; the district court refused to give the instruction. The COA engaged in a lengthy discussion of the relationship between theft and robbery but ultimately concluded Mr. Plummer was entitled to the requested instruction:

Based on the facts in this case, we believe reasonable jurors could find Plummer guilty of theft, though they might reach some other conclusion. Plummer spent about 2 hours in the Target store picking up merchandise. Some of his actions, as observed by store security personnel, were indicative of an intent to steal, rather than to purchase. Plummer commandeered Target property to facilitate the crime—the knife and backpack—and tampered with other property—he took the shaver out of its packaging. But the security personnel did not immediately challenge Plummer and instead waited until he had begun to leave the store, long after he had taken possession of much of the merchandise. As the Kansas Supreme Court noted in Saylor, the crime of theft is completed once a store patron "conceals" merchandise "on his person" with the intent to permanently deprive the owner of that property. The thief needn't leave or attempt to leave the store.

Accordingly, the trial court erred in failing to charge the jury on theft, as a lesser degree of robbery, in conformity with Plummer's request. We, therefore, reverse and remand for a new trial.

The COA also directed that the district court carefully consider giving lessers for attempt on retrial. Another in a line of cases that causes me to ask: "Why not give the lesser? What is the harm?" Why is there so much reluctance among the judiciary? If we believe in the right to a jury trial, why not let the jury do its work and let the chips fall where they may?

[Update: the state file a PR on May 16, 2011.]

[Further update: the KSC granted the state's PR on September 21, 2011.]

[Further update: on August 24, 2012, as blogged about here, the KSC ordered a new trial..]

Not a voluntary encounter

Rick Kittel and KU Defender Project intern Josh Berry won in State v. Hogan, No. 102,681 (Kan. App. April 15, 2011), obtaining a reversal of a Sedgwick County possession conviction based on an illegal search. The COA majority applied prior KSC precedent regarding voluntary encounters, but held, after a factually-intensive analysis, that the circumstances in this case did not prove a voluntary encounter:

Examining the totality of the circumstances, we are unable to conclude that Hogan freely, voluntarily, specifically, and without implied coercion, gave his consent to search the bag in the back seat. In addition to the equivocal nature of any consent by Hogan, many of the same factors considered in evaluating the detention must be considered here, including the presence of two uniformed and armed officers, the holding of Hogan behind the vehicle by Crowe as Robinson searched the back seat, the continuing activation of the overhead light bar, and the repeated questions from Robinson. Additionally, we note that Robinson utilized aggressive language after Hogan's protestation when he responded, "[Y]ou said I could search, correct?" We view that language as indicating that acquiescence to the officer's extended search was compulsory.

Examining the totality of the circumstances, we conclude that a reasonable person would not have felt free to leave upon Robinson's initial request to search the vehicle, and even if we were to conclude otherwise, any consensual encounter was transformed back to an illegal detention after Hogan objected to further search of his personal stuff. And finally, we are unable to conclude that Hogan's consent to search the black bag was voluntary after he protested to that search.

It's a good lesson that just because the KSC said that some police encounters can become voluntary encounters, these cases are factually intensive and the KSC precedent does not stand for the proposition that all police encounters are voluntary encounters. 

[Update: the state filed a PR on May 16, 2011.]

[Further update: the KSC denied the PR and the mandate issued on March 13, 2012.]

Closure of courtroom requires reversal

Michelle Davis won in State v. Barnes, No. 102,290 (Kan. App. April 8, 2011), obtaining a new trial in a Wyandotte County aggravated robbery prosecution. During trial, concerns about spectators taking pictures of the jury arose (although they were never confirmed). In any case, the district court closed the courtroom to the public for several parts of the trial, including a rebuttal witness, reading of instructions, and closing argument. The COA reached the Public Trial Clause issue for the first time on appeal and held that the closure was improper:

The State argues that the spectators abused their privileges to observe the witnesses and, therefore, the trial court rightly closed the courtroom.

However, the standard for denying a defendant his or her right to a public trial requires that the decision be no broader than necessary and the court consider reasonable alternatives to closure. Barnes correctly argues the trial court failed to consider reasonable alternatives to closing the courtroom, including banning cell phones from the courtroom.

The trial court could also have removed only Brooks without closing the entire proceeding to the public. The court had satisfied itself that Brooks was not taking pictures of the jury. If the court believed Brooks was acting in an unruly manner, which it may well have, its best option would have been to tell her to leave while allowing the rest of Barnes' friends and family to remain.

The COA correctly recognized that Public Trial Clause violation is not subject to harmless error analysis and reversed.

[Update: the state did not file a PR and the mandate issued on May 12, 2011.]