Anonymous tip of suspicious but not criminal activity is not reasonable suspicion

Samuel Schirer won in State v. Chapman, No. 111,572 (Kan. October 21, 2016), obtaining reversal of a Sedgwick County identity theft conviction. The decision turned on a search of a car, and discovery of evidence which resulted in the prosecution. Officers were responding to a dispatch about a suspicious character call in the middle of a snowy night and officers found a car matching the description given. The KSC reviewed several cases related to circumstances argued to amount to reasonable suspicion. The KSC agreed with dissenting-COA-Judge Buser that the facts in this case were lacking:

Judge Buser was correct that the facts of McKeown are much more similar to the facts of this case. In McKeown, law enforcement responded to an anonymous tip that a green pickup truck was parked near a residence on a road in a rural area and that the tipster could not determine what the unfamiliar pickup was doing in that location. Although the behavior reported was suspicious, it was not criminal. By the time law enforcement arrived, the truck had moved. This court decided that a stop of the pickup, which by then was proceeding down the roadway in a lawful manner, was not supported by reasonable suspicion. 

Results in other jurisdictions back up the McKeown reasoning that a tip of suspicious but not criminal activity is not enough to support reasonable suspicion. 

Judge Buser's preferred holding in this case also is reinforced by his observation, despite no emphasis upon it from the parties or the district court, that the tip in this case was anonymous. 

The KSC agreed that the anonymity of the tip in this case was important:  

We need not elaborate further in this case on the law governing evaluation of tip reliability. We note only that counsel and district judges in future cases should take care to perform such an evaluation in their analysis of the totality of the circumstances supporting the existence of reasonable suspicion for a car stop.

Because the stop was not legal, the KSC remanded with directions to grant Mr. Chapman's motion to suppress.

Dickey gets Dickey relief in probation violation cases

Samuel Schirer won in State v. Dickey, No. 110,325 (Kan. App. Oct. 14, 2016), obtaining a new sentence for Mr. Dickey on his second trip to the KSC. In the first case, blogged about here, the KSC held that a later factual determination regarding whether a prior burglary conviction was a person or nonperson offense was not permitted. After the first case, Mr. Dickey also had several probation revocation cases. The state argued that Mr. Dickey could not attack those sentences as illegal. The KSC held that misclassification of a prior conviction as a person felony resulted in an illegal sentence, which he could raise any time:

Our holding in Dickey I demonstrates that the proper classification of a prior crime is exclusively a matter of state statutory law. Which is simply to reiterate that "[b]ecause burglary of a 'dwelling' . . . was not included within the statutory elements making up the defendant's burglary adjudication . . . [it] should have been classified as a nonperson felony for criminal history purposes."

Having clarified that the challenge presented to Dickey's sentences in both Dickey I and here are challenges to the statutory propriety of the classification at issue—albeit with a thick overlay of constitutional law occasioned by the State's unconstitutional efforts to "save" Dickey's prior conviction as a person felony—there is no impediment to Dickey's claim that the underlying sentences he received after his probation was revoked in the three underlying cases are illegal. And that claim is identical to, and controlled by, our determination in Dickey I that the exact prior conviction at issue here was in fact misclassified. The State's remaining efforts to impose a procedural bar to the relief Dickey seeks—arguments concerning retroactivity and res judicata—are all unavailing in the context of a motion to correct an illegal sentence which can be made at any time. Dickey's prior 1992 conviction was misclassified as a person felony, and the resulting sentences are illegal.