District Court not barred from considering on remand new video evidence that substantially impacts motion to suppress

Randall Hodgkinson won in State v. Thompson, No. 122,959 (Kan. App. Sept. 10, 2021)(unpublished), obtaining reversal and remand in a Reno county drug possession prosecution on a suppression issue. The case arose when a deputy pulled Mr. Thompson over for allegedly failing to yield to the deputy’s emergency-lighted vehicle. A search after that stop discovered drugs. At the district court, Mr. Thompson filed a motion to suppress asserting the deputy’s emergency lights were not on when he passed the vehicle, meaning the officer did not have cause for the traffic stop. Mr. Thompson testified that when he passed the deputy’s vehicle he had not emergency lights on. The deputy testified, however, that he had his rear emergency lights on after finishing another traffic stop. While camera footage from the front of his vehicle showed no visible flashes of red and blue lights, despite it being pitch black outside that night, the officer said the lights were not visible from the front.

The district court initially ordered suppression, but the State filed an interlocutory appeal. A panel of the Court of Appeals then reversed, saying the district court’s written order still stated that deputy’s rear lights were on, and the deputy’s testimony supported that finding, justifying the stop. The panel in that appeal rejected Mr. Thompson’s argument that the district court had, in fact, found Mr. Thompson’s testimony that the emergency lights were off more credible than the deputy’s testimony. On remand, Mr. Thompson renewed his suppression issue after discovering at the bench trial that a camera from the deputy’s vehicle contained a 360-degree view which showed the emergency lights were off, but the district court found it could not consider that evidence based on the mandate from the first appeal. Mr. Thompson was convicted of drug crimes following the bench trial.

On the second appeal, a second COA panel held the district court was not barred considering the suppression issue based upon the new evidence. The panel first noted that the district court incorrectly viewed the previous appellate mandate as restricting its ability to consider the new evidence. In particular, the mandate from the first case, which reversed the district court's order of suppression and remanded the case for further proceedings, did not prevent the district court from considering the issue anew given the new evidence presented. The panel further rejected the State’s argument that res judicata barred reconsideration of the issue, as the doctrine does not apply to proceedings following remand from a prior appeal. Likewise, law of the case did not preclude consideration of the issue because it arose upon new evidence developed upon remand. Finally, the panel rejected the argument that K.S.A. 22-3216 required Mr. Thompson file a second motion to suppress, noting that Mr. Thompson’s arguments were the same as in his original motion, and a court may re-entertain a motion to suppress based upon new evidence produced at trial. The panel, thus, reversed and remanded the case with direction for the district court to consider Mr. Thompson’s renewed motion to suppress in light of the new camera footage.