Arkansas false imprisonment conviction not a person offense

Kimberly Streit Vogelsberg and Kasper C. Shirer won in State v. Ewing, No. 116,641 (Kan. August 2, 2019), obtaining a new sentencing hearing in a Sedgwick County theft and attempted aggravated burglary prosecution. The particular issue was whether a prior misdemeanor convictions from Arkansas were person offenses under the Kansas Sentencing Guidelines. The KSC applied its precedent in Wetrich (blogged about here), to hold that the Arkansas offense of false imprisonment was not identical or narrower than criminal restraint (a person offense): 

This shows that a person who would not be guilty of criminal restraint in Kansas might be guilty of second-degree false imprisonment in Arkansas. For instance, Kansas only requires probable cause to believe a person will or is about to take property to detain a person, while Arkansas requires actual "knowing concealment" of unpurchased property or the activation of an inventory control device after notice that one is in use. Accordingly, the Kansas crime is not comparable to second-degree false imprisonment in Arkansas because circumstances justifying an act otherwise constituting the Arkansas crime are not identical to or broader than those in Kansas.

The KSC also recognized that while some forms of battery in Arkansas were the same as battery in Kansas, some others were not because they were based on negligent conduct. The KSC applied its precedent in Obregon (blogged about here) to remand for the state to prove the subsection of the Arkansas battery statute involved in the Arkansas prior convictions (if necessary after reclassifying the false imprisonment conviction).

[Update: the state filed a motion for rehearing on August 23, 2019].

[Further update: the KSC denied the state's motion for rehearing and the mandate issued on October 3, 2019].

Discovery of additional prior convictions does not result in illegal sentence

Kai Tate Mann won in State v. Schulze, No. 119,184 (Kan. App. July 26, 2019), obtaining a new sentencing hearing in a Saline County theft prosecution. After being sentenced using criminal history category C, the state discovered some additional prior convictions. The state filed a motion to correct illegal sentence, which the district court granted, resentencing Mr. Schulze using criminal history category B. The COA cited two previous KSC cases and held that the state's failure to challenged the PSI at sentencing precluded it a later challenge regarding the existence (or non-existence) of prior convictions (at least in the same case)

While Lehman may have declined to apply the invited error rule to the requested illegal sentences, it did not negate the earlier distinction made between factual and legal stipulations. The State has not cited any cases suggesting the Kansas Supreme Court is departing from this distinction. Based on [State v. Dickey, 301 Kan. 1018, 350 P.3d 1054 (2015)] and [State v. Weber, 297 Kan. 805, 304 P.3d 1262 (2013)], the State cannot now challenge the factual basis for Schulze's criminal history score because it failed to object to it before the district court.

Because the original sentence was not illegal, the COA remanded with directions to resentence based on the first PSI report.

[Update, the state did not file a PR and the mandate issued on September 3, 2019].

Derivative evidence cannot attenuate initial illegal conduct

Kimberly Streit Vogelsberg and Randall L. Hodgkinson won in State v. Christian, No. 116,133 (Kan. July 26, 2019), obtaining reversal in a Reno County drug prosecution. Officers had arrested Mr. Christian for failure to provide proof of insurance. During the arrest, an officer directed Mr. Christian to put his keys on the roof of the car and asked about an attached silver container. Mr. Christian said that he kept pills in it and consented to a search. The search revealed marijuana. The officer then arrested Mr. Christian for possession of marijuana and searched the car, revealing other drug evidence.

The COA held that the initial seizure was not supported by reasonable suspicion, but held that the evidence should not be suppressed under the attenuation doctrine. On review, the KSC only reached the issue of whether the attenuation doctrine applied. The KSC held that there was temporal proximity because no substantial amount of time passed between the unlawful act and discovery of the evidence. In particular, the KSC rejected the state's claim that intervening circumstances were present:

Christian's arrest did not result from the officer fulfilling his duty to execute a preexisting arrest warrant. Instead, the panel found the officer had discretion to arrest Christian for no proof of insurance. Detaining Christian for the expired tag and arresting him for no proof of insurance were not "ministerial act[s]" consistent with the officer's "'sworn duty to carry out [the] provisions'" of an arrest warrant. Rather, these were discretionary acts within his investigatory role as a law enforcement officer. 

In addition, unlike a valid, preexisting warrant unrelated to the stop, the bases relied on to detain—the expired tag—and arrest Christian—the lack of proof of insurance—arose from and were directly related to the unlawful initial detention. Granted, these facts supported probable cause that crimes had been committed. But all of the officer's actions flowed from and were tainted by the unconstitutional seizure. To rule otherwise would allow derivative evidence to attenuate the initial illegality. But that is not the attenuation doctrine's purpose.

Finally, the KSC held that the officer's actions were flagrant because it could not be reasonable for officers to search a car for evidence of lack of proof of insurance. As a result, the KSC held that the attenuation doctrine could not apply in this case.

Flagrant violations do not attenuate Fourth Amendment violation

Reid T. Nelson won in State v. Sanders, No. 118,640 (Kan. July 26, 2019), affirming Judge Braun's suppression order in a Shawnee County drug possession prosecution. Judge Braun found that the officers' lacked reasonable suspicion to detain Mr. Sanders. The state appealed claiming, among other things, that even if the seizure was illegal, the attenuation doctrine applied to prevent application of the exclusionary rule. The COA agreed that the seizure was illegal, but also that the attenuation doctrine applied based on later discovery of an arrest warrant. The KSC granted review.

On the issue of whether the initial stop was illegal, the KSC agreed with the district court and the COA that the state failed to show reasonable suspicion, despite the officer's perception that Mr. Sanders had fled:

First, as we have discussed, it is not clear that Sanders had spotted the police. In contrast, the driver in Smith admitted that he had. Second, nothing in this record establishes that Sanders was not going about his business at that point. All the record contains about a possible attempt at concealment is Officer Belt's claim that Sanders attempted to hide behind a drainpipe in the alleyway. Often an officer's impression of an individual's actions would be enough to support a reasonable suspicion. Here, however, the district court discounted Officer Belt's testimony finding "too much of the answers to the questions or the scenario posed by the officers appears to be that of filling in the blanks after the fact as opposed to what they did, why they did it at the time."

In addition, the officer's belief, assertion, or hunch is not the critical consideration. Rather, a question of fact arises about whether Sanders intended to conceal himself or was merely standing by the drainpipe for some innocent purpose. But the district court did not specifically address the possibility of concealment and made no factual findings on this point.

Despite the lack of an explicit ruling, the State failed to object or request a clarification. A party must object to inadequate findings of fact or conclusions of law to preserve the issue for appeal. When a party fails to object, an appellate court can presume the district court found all facts necessary to support its judgment. Remand is necessary only where the record does not support such a presumption and the lack of findings precludes meaningful review.

The KSC held that the record supported the district court's findings regarding the officers' credibility and that it would not reweigh them.

On the issue of attenuation, the KSC reviewed the factors set out in Brown v. Illinois, 422 U.S. 590 (1975) to determine whether a particular Fourth Amendment violation is sufficiently attenuated to allow use of evidence discovered after the violation. The KSC agreed that temporal proximity weighed in favor of Mr. Sanders and that a warrant can be an intervening circumstance favoring the state. But because the search took place in this case before discovery of the warrant, the KSC held that the this circumstance was less compelling. Finally, the KSC held that the final factor "purpose and flagrancy of the official misconduct" was perhaps the most critical fact and favored Mr. Sanders:

Here, the district court found: "I still think the whole thing had been set up to be able to make the contact and do those things with [Sanders]. Then they find out about the warrant." And "those things" the district court referred to were questioning Sanders and conducting a frisk. It further found the officers pieced together their justifications after the fact. In other words, the district court found the officers did not have a subjective, good-faith belief that their actions were justified when they initiated the seizure. Instead, they acted on the hope something would turn up. Their actions were purposeful and flagrant misconduct.

As to another flagrancy consideration, the United States Supreme Court found it significant that the officer in Strieff acted legally after he made an unconstitutional seizure. Here, the officers made an unlawful seizure and then conducted two warrantless searches. And the State has failed to establish a valid exception to the warrant requirement for either search. In other words, the officers committed several unconstitutional violations.

In summary, the panel erred in concluding there is "no evidence in the record to suggest that the officers' seizure—albeit overzealous—constitute[d] flagrant misconduct." The third factor weighs in favor of suppression. The district court properly reached that conclusion when it mentioned the attenuation doctrine and said: "[T]hey find out that there's a warrant but my belief, counsel, is that the activity or that the whole issue of seizing the defendant, I have great difficulty with based on the testimony that I've heard." The district court also found the "issue [with] seizing the defendant" was that it was set up. Even if no other Brown factor weighed in favor of suppression, the officers' flagrant misconduct would tip the scale. But all three factors tip that way. The district court did not err in suppressing the evidence. 

The KSC also rejected the state's late attempt to argue for the inevitable discovery doctrine and, therefore, affirmed Judge Braun's suppression order.

Mandate rule does not prevent judge from doing necessary tasks to dispose of a case

Kevin J. Zolotor and Charles A. O'Hara won in State v. Soto, No. 117,059 (Kan. July 26, 2019), obtaining a new hearing in a Sedgwick County murder prosecution. A jury convicted Mr. Soto of premeditated first-degree murder. On appeal, Mr. Soto argued that his hard-50 sentence was unconstitutional under Alleyne v. United States. The KSC vacated the hard-50 sentence and remanded for resentencing (blogged about here). Although initially indicating it would still seek a hard-50 sentence, the state eventually decided to simply settle for a hard-25 sentence.

On remand, the parties learned about a potential Brady violation and newly discovered evidence related to what a witness had said during interviews. After substantial briefing from the parties, the district court held that it was procedurally barred from considering the Brady and newly discovered evidence claims by the mandate rule. After a detailed history of appellate mandates in Kansas, the KSC disagreed:

But this court—as it turns out, in harmony with the United States Supreme Court and the United States Court of Appeals for the Tenth Circuit—has so far resisted the impulse to make the "jurisdictional" generalization about the mandate rule and the broader doctrine of law of the case.

We continue to resist that impulse today. Our synthesis of Kansas precedent on the mandate rule is more nuanced than the State's: The rule applies to prevent district court action on remand only when an issue has already been finally settled by earlier proceedings in a case, including issuance of the appellate mandate. If a final settlement of an issue has occurred, the district judge is not free to expand upon or revise that history. The mandate rule does not, however, prevent a district judge from doing whatever else is necessary to dispose of a case. This means the district judge must not only do as the mandate directs; he or she must also do what is needed to settle other outstanding issues that must be decided to complete district court work on the case. Such issues may have been allocated for decision in the district court in the first place and then untouched by appellate proceedings. They may include issues arising from late-breaking facts.

The KSC also held that the district court had statutory authority to consider Mr. Soto's motion for new trial and so remanded for full consideration of his claims.

Securities fraud prosecution requires actus reus in Kansas

David L. Miller, Richard Ney, and Kurt P. Kerns won in State v. Lundberg and Elzufon, No. 114,897/114,898 (Kan. July 19, 2019) affirming Judge Burgess' dismissal of several counts in a Sedgwick County securities fraud prosecution. The primary issue at the district court an on appeal was whether any acts subject to the Kansas Uniform Securities Act occurred in Kansas. The KSC plurality concluded that they did not:

Here, an offer to sell was not made from Kansas—in other words, it did not originate from Kansas—under any of these formulations of the definition. Instead, Lundberg and Elzufon retained agents in another state and those agents made an offer on behalf of the company. The offers originated with the California intermediaries. Documentation or other communication sent on behalf of Real Development or the LLCs that supported the offers, which as discussed above could be interpreted to constitute an offer, was sent from Minnesota, not Kansas. No act comprising the sales offer process that underlies these charges against Lundberg and Elzufon occurred in Kansas. While we recognize the offers were extended on behalf of the Kansas LLCs, we find no support for an interpretation of the KUSA that would allow a Kansas court to exercise criminal jurisdiction only because the entity purportedly benefiting from the security issuance was organized under Kansas law and has a place of business in Kansas when no act in connection with the sale or offer occurred in Kansas.

Even so, the State, Court of Appeals panel, and amicus all rely on Lintz and Newsome to conclude that Kansas has a sufficient "nexus" to the alleged crimes to invoke Kansas jurisdiction. We are not persuaded by these cases because jurisdiction arises under the KUSA only if an offer or sale occurred in the state—not just because the transaction has some sort of "nexus" to the state.

We also conclude the panel of the Court of Appeals erred in its analysis because it confused concepts of constitutional long-arm jurisdiction with the statutory jurisdiction granted by the KUSA. The panel emphasized Lundberg's and Elzufon's contacts with Kansas, noting Lundberg and Elzufon formed the Kansas LLCs to raise funds from investors to develop property in Wichita; the LLCs have places of business in Kansas; the LLCs conducted substantial operations in Minnesota and Kansas; some securities issued by the LLCs include choice-of-law and forum-selection provisions designating Kansas law and Kansas courts for resolving disputes; Lundberg signed a promissory note (one that did not relate to the charges at issue on appeal) while in Kansas; a Wichita investor purchased a promissory note issued by a Kansas LLC, even though the criminal charges based on this transaction had been dismissed before the case reached the Court of Appeals; Lundberg and Elzufon were in Kansas "on multiple occasions"; one intermediary traveled to Wichita to meet Lundberg and Elzufon; and, one time, information about investments was faxed from a hotel in Wichita. The panel then found these contacts substantial enough that Lundberg and Elzufon should have anticipated being brought into court in Kansas. 

This type of minimum contacts analysis might satisfy constitutional due process requirements, but it fails to address the statutory language limiting Kansas' jurisdiction over criminal acts arising under the KUSA.

As a result, the KSC affirmed Judge Burgess' dismissal of these counts for lack of jurisdiction.