Point of Law

The Kansas Supreme Court recently reversed an earlier Court of Appeals decision concerning when, during a DUI investigation, a suspect may request to speak to an attorney.  That earlier Court of Appeals opinion was the subject of a November 11, 2022 Point of Law case summary. 

Thomas Kerrigan had been stopped for a traffic violation, had admitted to drinking, and prior to law enforcement evidentiary testing (EBT), Kerrigan had allegedly requested multiple times to speak to an attorney but had been denied.  Kerrigan submitted to the EBT but then did not renew his request to speak to an attorney.  Kerrigan’s blood alcohol concentration was above the legal limit and he was charged with DUI.  Kerrigan moved to suppress the EBT evidence based upon the denial of the attorney request.  The trial court denied suppression, and following his conviction, Kerrigan appealed.

K.S.A. 8-1001(c)(1) states that “the person shall be given oral and written notice that . . . [t]here is no right to consult with an attorney regarding whether to submit to testing, but, after the completion of the testing, the person may request and has the right to consult with an attorney and may secure additional testing.”

A divided Court of Appeals panel held that the statutory language on the timing of a request was ambiguous and therefore an officer should honor a suspect’s request to speak to an attorney made anytime during the DUI investigation.   The dissenting appeals judge, Judge Kathryn Gardner, always the voice of reason in Topeka, would have held that the statute is clear: “after the completion of testing” actually means after the completion of testing.  The State asked the Supreme Court to review the panel’s divided decision.

A few weeks ago, a divided Supreme Court (yes, even the justices could not agree what the statute meant), reversed the appeals panel decision.  So, officially, K.S.A. 8-1001(c)(1) is not ambiguous.  The majority opinion held that “[f]or a person to properly invoke the statutory right to post-EBT counsel, the plain language of the [2018] amended statute requires the person to make a request for counsel after administration of the EBT [law enforcement testing].”

However, and not wanting to leave good enough alone, the majority opinion went on to create the legal framework for the next line of DUI appeals: that K.S.A. 8-1001(c)(1) only creates a statutory right to speak to an attorney but the Miranda warning reflects a wholly separate constitutional right to speak to an attorney.  The Court then leaves us hanging.  “Thus, the constitutional right to speak to an attorney upon request after a Miranda advisory is not at issue here and we express no opinion on the merits of such an argument.”  

One thing is for certain: the employment opportunities for attorneys appears safe for the foreseeable future.  

I do not usually report on state trial court opinions because those tend to affect only the parties in a particular case.  However, the following lower court decision has a couple of teaching points that may well be useful to other officers who might find themselves in similar circumstances.

In 2022, a Kansas sheriff deputy was dispatched to a rural property on the anonymous tip of there being neglected and abused dogs.  Deputies had been to the private residence before and knew it to be the location of a home and a dog breeding business.  The deputy parked in the driveway, went onto the front porch and knocked on the door.  No response.  Believing that K.S.A. 21-6412(e) [the animal cruelty statute] gave him authority to check the welfare of animals on the property, the deputy walked to the backyard.  About 75 yards from the house, the deputy found many abused dogs in multiple pens.  While the deputy was at the pens, the breeder and his spouse arrived.  The spouse attempted to remove one of the injured dogs.  Believing that the owners were going to remove the dogs from the property, the deputy warrantlessly seized three of the most- injured dogs.  Other deputies arrived, secured the property, obtained a search warrant, and sought the assistance of the state Department of Agriculture’s Division of Animal Health to help seize and care for an additional 55 dogs.  The search warrant was based upon what the first deputy had observed after entering the breeder’s property.

The breeder was charged with multiple counts of animal cruelty and moved to suppress the evidence arguing that the first-dispatched deputy did not have authority to enter and search the property.  There was extensive briefing by the parties and the trial court held a hearing during which multiple witnesses testified.  In his well-reasoned written opinion, the trial judge answered three questions concerning the legality of the first deputy’s actions.

The State had first argued that based upon the anonymous 911 call (information that animals were then being abused and neglected) and the later possibility that the dogs would be removed from the property before a search warrant could be obtained, the deputy had both probable cause and exigent circumstances to enter and search the property.  The Court disagreed.

While an anonymous tip can be used to demonstrate probable cause, more is required than just the tip itself.  Tips from unidentified informants must be corroborated, accompanied by a description of the informant’s basis of knowledge, or have some indicia of reliability.  Based on the evidence presented at the hearing, the trial judge held that the tipster’s basis of knowledge and reliability were completely unknown to the deputy.  Additionally, the presence of abused dogs, and of them possibly being removed before a search warrant could be obtained, was known only after the deputy’s initial entry and search.  So, neither probable cause nor exigent circumstances were present at the moment the first deputy entered the property.

The State next argued that K.S.A. 21-6412(e) authorized the deputy to search the property for evidence of animal cruelty.  The applicable part of that statute states that, “[a]ny . . . law enforcement officer . . . may take into custody any animal, upon either private or public property, which clearly shows evidence of cruelty to animals . . .”  Again, the judge disagreed.  While that statute does allow for the seizure of abused animals, it says nothing about officers’ trespassing and searching to find the animals.  In other words, the deputy first had to have the right to be where the deputy could observe the dogs before the statute would then authorize a seizure.  So, the first deputy had no statutory authority to enter onto or to search the defendant’s property.

Lastly, the State argued that the dog pens were located outside of the curtilage of the breeder’s home and therefore the open fields doctrine should apply.  The curtilage of a home is the area immediately surrounding, and directly associated with, the home.  The curtilage area “harbors the intimate activity associated with the sanctity of a person’s home and privacies of life.”

“Open fields” was first recognized by the United States Supreme Court in 1924.  The Big Court has said since that contrasted with those areas that a person does have a reasonable expectation of privacy, open fields “do not provide the setting for those intimate activities that the [Fourth] Amendment is intended to shelter from government interference or surveillance.  There is no societal interest in protecting the privacy of those activities, such as the cultivation of crops, that occur in open fields.”  

As a practical matter, open fields are those areas accessible to the public (and therefore open to the police too) in ways that a home, an office, or commercial structure would not be.  Fences and “no trespassing” signs also do not bar the public from viewing those areas.  Further, an open field need not be either “open” nor a “field” as those terms are used in common speech.  Therefore, “an individual has no legitimate expectation that open fields will remain free from warrantless intrusion by government officers.”  

The factors to be considered by a court when determining whether a particular location is an unprotected “open field” include: 1) the proximity of the area claimed to be curtilage to the home; 2) whether the area is included within an enclosure surrounding the home; 3) the nature of the uses to which the area is put; and 4) the steps taken by the resident to protect the area from observation by people passing by.  After reviewing those factors, the trial judge held that the significant distance between the home and the dog pens, the commercial breeding operations carried on at the pens, and the lack of any curtilage-type activity near the pens all weighed in favor of the area having been an open field.  Therefore, the first deputy’s entry and subsequent search of the pens was lawful.  The defendant’s motion to suppress the evidence was denied.

Additional Note: Whether because the defendant was a licensed dog breeder his property was also subject to administrative inspection pursuant to K.S.A. 47-1709 was not discussed in opinion.   A review of that statute, and the supporting Kansas Administrative Rule 9-18-8, indicates that the Animal Health Commissioner of the Kansas Department of Agriculture or “the commissioner’s authorized, trained representative” may administratively inspect premises without notice between 7AM and 7PM Monday through Friday.  That said, even a KDOA-sanctioned inspection is subject to the Fourth Amendment.  Should an administrative inspection be refused, the inspector will be required to obtain an administrative search warrant from the district court to be able to return and proceed with the property inspection.  Remember that state law can never override the requirements of the Fourth Amendment.  “When it comes to the Fourth Amendment, the home is first among equals.”  

Additional reading see: K.S.A. 21-6412(e); K.S.A. 47-1701 et seq.; (on tipsters): Illinois v. Gates, 462 U.S. 213, 241-46 (1983) and State v. Hensley, 298 Kan. 422, 431 (2013); (on open fields): Oliver v. United States, 466 U.S. 170 (1984), United States v. Dunn, 480 U.S. 294, 304-05 (1987), and State v. Tinsley, 16 Kan.App.2d 287 (1991); (that officers can go where the public and invitees go): Florida v. Jardines, 569 U.S. 1 (2013).

The 10th Circuit Court of Appeals recently upheld three reasonable suspicion factors consistently used in criminal interdiction investigations, while at the same time tossing overboard five lesser ones.

In the seminal 2015 traffic stop case of Rodriguez v. United States, the Big Court said that a seizure for a traffic violation justifies a police investigation of that violation.  An officer’s authority to seize a vehicle’s occupants ends, however, when tasks tied to the traffic infraction are--or reasonably should have been—completed.  Even so, it is permissible for an officer to conduct certain unrelated inquiries during the stop but the unrelated inquiries may not prolong the traffic stop unless the officer has reasonable suspicion of additional criminal activity.  Even de minimus (trifling or of little importance) delays caused by inquiries unrelated to the original reason for the stop violate the Fourth Amendment in the absence of reasonable suspicion.  In fact, the point in time that a stop is prolonged such that reasonable suspicion of another crime is required is now known as the “Rodriguez Moment.”

In this case, two Wyoming sheriff deputies stopped for a traffic offense a rental car driven by Ian Batara-Molina (Molina).  One of the deputies was a dog handler, and during the event the dog was deployed.  The dog alerted to the odor of controlled substances coming from Molina’s car and on a warrantless probable cause search 14 pounds of methamphetamine were found in the trunk.  Molina was charged in federal court and he asked that the drugs be suppressed because the car stop was prolonged without reasonable suspicion.  After a hearing, the district court held that 1) the dog sniff occurred during the original traffic enforcement action, and 2) even if the car stop had been prolonged, the officers had reasonable suspicion of additional criminal activity giving them extra time for the dog sniff.  Molina was convicted and appealed.

Interestingly, on appeal the assigned judge panel did not take up whether or not the dog sniff occurred during the original traffic stop.  Instead, the panel simply assumed that the car stop had been prolonged for a drug investigation and dog sniff requiring reasonable suspicion.  Assumptions like that are not necessarily unusual on appeals as it tends to signal that the government is about to win on the true question in the case.

The officers had testified to eight facts from the event that they believed added up to reasonable suspicion and thus authorized the officers to prolong the stop: 1) an unknown but “overwhelming” odor coming from the vehicle’s interior; 2) Molina’s mispronunciation of “Sioux Falls,” as his destination; 3) the car had been rented by a third-party who was not present in the car; 4) the rental agreement was expiring; 5) Molina had spent the previous night at a gas station instead of a hotel; 6) there was a vape pen in the car; 7) the car’s back seat contained no luggage; and 8) Molina was traveling from California, a drug source state.  The district court had accepted all of those factors.

The appeals panel reviewed those eight factors and immediately tossed as not at all suspicious the following five: Molina’s mispronunciation of the name of Sioux Falls since it was a city in which he did not live; Molina staying the night at a gas station since many travelers of modest means sleep in their cars; a vape pen in the car because it is too common of an item and could be found in the vehicle of “any innocent traveler” (noting that there may be other circumstances where there could be evidentiary value to a vape pen); seeing no luggage in the back seat of a car with a trunk when most travelers place their luggage in the trunk (it might be different if a car did not have a trunk); and, that Molina was from a drug source state [California] because the majority of the states have now legalized marijuana it is no longer reasonable to believe that there are particular drug source states.  

That left before the panel only the facts of an overwhelming “cover” odor, a third-party rental, and the details surrounding an expiring rental agreement.  

Odor: it is well-established that a strong odor may be used in establishing reasonable suspicion because drug traffickers use masking to hide the odor of drugs.  Further, officers need not identify the particular odor as it is enough that the odor was overwhelming.  

Rental Car/Third-Party: even though the use of a rental car alone does not contribute to reasonable suspicion, the fact that a rental was made by a third-party is consistent with the behavior of drug traffickers.  

Expiring Agreement: to make a long trip only to stay at the destination for a short amount of time is also consistent with the behavior of a drug courier.  But, because rental agreements can be extended from the highway, the national case law is mixed.  This panel gave weight to the fact that the deputies here had questioned Molina about the imminent expiration and that Molina’s response was found wanting.  Molina said that he planned to extend the agreement for one day, but the deputies reasonably believed that a one-day extension was still suspicious because of the enormous travel time involved.    

The appellate panel held that the overwhelming cover odor, the third-party rental, the unusual details of the rental terms versus the travel time, and because a court is to give deference to an officer’s ability to distinguish between innocent and suspicious actions “just barely supported” reasonable suspicion.  The prolonged car stop and the resulting dog sniff did not violate the Fourth Amendment.   

A Story of a Chief’s Decision, the Establishment Clause, and Spending a Bunch of Taxpayer Money

The First Amendment to the United States Constitution holds that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” Through the Fourteenth Amendment, the First Amendment also applies to the states and to their municipalities.

In 2014, following a series of serious and violent crimes in Ocala, Florida, the police chief met with members of the Ocala faith-based community to seek their help in convincing witnesses to cooperate. In what was later described by the federal district court as “no doubt well-intentioned and sincere” efforts, the police chief and his department then sponsored a prayer vigil in the town square. The sponsorship included on-duty planning meetings, a written invitation on department letterhead for citizens to attend the vigil, placing the invitation on the department’s Facebook page, and on-duty personnel creating a separate flyer which depicted a photo of the town square site with praying hands in one corner and the department’s logo in the other.

After the invitation was broadcast, but before the vigil, some concerned citizens contacted the police chief and mayor concerned that “a prayer vigil organized by a police department would violate the U.S. Constitution. When a second citizen questioned what that citizen perceived to be the police chief’s endorsement of religion, the mayor responded that he intended to praise the chief for it. Another citizen responded on the department’s Facebook page (that the federal district judge later included in his opinion) that said: “why are the police asking us to pray? Will they arrest us if we don’t pray?” The police chief and mayor ultimately decided the event would not be cancelled and the police department’s sponsorship would not be transferred to a non-governmental private organization. At the vigil, four uniformed department chaplains, all of the Christian faith, were present on stage and participated in the prayer vigil.

As of March, 2023, those Ocala police efforts have resulted in a federal lawsuit, seven years of litigation, and City losses in both the federal district court and the 11th Circuit Court of Appeals. The federal trial judge was certainly clear in his decision saying, “[T]here is no dispute that these speeches [during the vigil] were religious . . . .[i]n sum, under the Establishment Clause of the First Amendment to the United States Constitution, the government cannot initiate, organize, sponsor, or conduct a community prayer vigil. That is what happened here. Yet, the same event in private hands would be protected by the First Amendment.” The court was paraphrasing Supreme Court Justice O’Connor when she said in a prior Supreme Court case, “[T]here is a crucial difference between government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Speech and Free Exercise Clauses protect.” In just the last few weeks, the City requested review by the U.S. Supreme Court. The justices declined, but did send the case back down to the trial court ordering that it use a more recent test to decide the Establishment Clause question. The justices’ decision to send the case back down should add about three more years and hundreds of thousands of dollars to the litigation.

The two issues in the case remain: 1) did the plaintiffs’ have standing to sue; and, if they did have standing, 2) did the actions of the police chief and the City amount to an unconstitutional endorsement of religion. One or maybe both of those questions will finally be answered when the case gets back to the justices.

Again, there has been no final resolution. So, the reader may wonder why this article? Well, first it is to bring the litigation to the attention of agency administrators; second, that to become unnecessarily entangled in an Establishment Clause lawsuit may well cost millions of dollars in taxpayer and tort insurance carrier money; and lastly, the media coverage of the department and of the decision-makers’ private lives will seem never-ending.

One has to think that had the police chief decided instead to have a private group sponsor and plan the community-important vigil the citizen complaints would never have seen the inside of a federal courtroom. No matter the ultimate outcome of the case, agency administrators would be well-served to steer clear of issues involving the Establishment Clause because the law is anything but clear, and even winning will be quite expensive.

(First published Kansas Sheriff magazine, Spring 2023; provided here with permission)

Colin

In 2018, Jeremiah Orange was a suspect in a child sex crime investigation.  A videotaped police interview of Orange then occurred in a law enforcement facility where Orange read aloud and signed a Miranda waiver form.  Following the interview, serious sex crime charges were filed.  Before trial, Orange asked the trial court to suppress his statements to a detective because his statements were not freely and voluntarily given.  After a hearing, the trial judge denied the motion.  A jury later convicted Orange, and the trial judge sentenced him to four consecutive hard 25 life prison terms.  (That is a whole lot of years of protection for other children).  Orange appealed, and the Kansas Court of Appeals recently agreed with that trial judge. 

The State has the burden to prove the voluntariness of a statement to police by a preponderance of the evidence that the suspect’s statement was the product of a his or her free and independent will.  A court looks at the totality of the circumstances surrounding the statement to determine whether it was voluntary by considering the following nonexclusive factors: 1) the suspect’s mental condition; 2) the manner and duration of the interview; 3) the ability of the suspect to communicate on request with the outside world; 4) the suspect’s age, intellect, and background; 5) the fairness of the officers in conducting the interview; and, 6) the suspect’s fluency with the English language.

In this case, Orange only argued factors #2 (manner and duration of the interview) and #5 (fairness of the officers).  As for the manner and duration, the appellate panel said that the interview room was standard with one table and two chairs, Orange was not handcuffed during the interview, only one detective was in the room, Orange was offered a drink, sat comfortably and smiled throughout the interview, was offered a bathroom break, did not have to wait for the interview to begin, the interview lasted only 55 minutes, the conversation was cordial and in polite tones, and the detective did not exhibit extreme or demonstrative body language during the interview.  To say the least, none of that helped Orange’s argument.

Orange then argued that conducting an interview in a law enforcement building “is more intimidating than . . . at the suspect’s home or in some neutral area.”  Well, yes that it true.  But the judges said that nothing had been shown that the location was overly intimidating, was hostile, or that Orange was uncomfortable at the location.  Although the detective was seated between Orange and the interview room door, there was no evidence that the detective blocked the door or physically stopped Orange from leaving.  

As for the fairness of the officers (factor #5), the panel said that the following supported voluntariness of the statement: 1) “nothing was sprung” on Orange; 2) the conversation was cordial; and, 3) nothing done or said by the detective “rose to the level of deceptive tactics” that have been condemned by the Kansas Supreme Court.  In this case, all the detective did was challenge Orange’s responses and repeated questions.  Because Orange’s responses had changed over time, the detective would “circle back” on the conflicting information.  The panel said that this interview tactic was “not unduly coercive.”  And, since a 55-minute interview is nothing out of the ordinary, his appeal failed.  Orange’s abode will continue being a Kansas prison.

Our state Court of Appeals recently tackled a traffic “case of first impression” for Kansas.  On an evening in 2020, Jack Garner was stopped at a stop sign.  A nearby officer observed Garner make his vehicle’s engine “roar” resulting in “spinning [the truck’s] tires all the way around until it got . . . directly onto 13th Street and straightened up.”  The officer stopped Garner for a violation of K.S.A. 8-1547 which provides that: “No person shall start a vehicle which is stopped, standing or parked unless and until such movement can be made with reasonable safety.”  

During the resulting traffic investigation, the officer arrested Garner for DUI.  The Kansas Department of Revenue later suspended Garner’s drivers license, and the county district court upheld the administrative suspension.  Garner appealed challenging the officer’s belief that Garner had violated K.S.A. 8-1547.  (Importantly, this traffic case and appeal did not involve the separate statute, K.S.A. 8-1565, involving “exhibition of speed.”)

“An officer’s decision to seize someone by pulling them over constitutes a valid seizure under the Fourth Amendment if the officer has specific and articulable facts that create a reasonable suspicion the seized individual is committing, has committed, or is about to commit a crime or traffic infraction.  When an officer lacks those specific, articulable facts, the seizure may violate the Fourth Amendment, assuming no exception applies.  In such cases if the traffic stop is unconstitutional the court may set aside KDOR’s administrative suspension of a person’s driver’s license.”

After review, the appellate panel held “[t]his court joins most other state courts that have addressed this statutory language in holding that a driver’s acceleration from a stop that causes the car’s engine to rev and tires to squeal and spin is insufficient to constitute a violation of K.S.A. 8-1547 when there are no other circumstances showing that the acceleration was not reasonably safe . . .The essence of the unsafe-start statute is that it prohibits unsafe conduct, and the officer here did not identify any conditions or circumstances – such as wet road conditions, construction, the presence of other vehicles or pedestrians, or obstruction – that made Garner’s acceleration unsafe . . .This court does not doubt the good-faith intention and belief of the arresting officer, but that is not enough to support the constitutionality of Garner’s seizure in these circumstances.”

Interestingly, the fate of the parallel criminal DUI case is not discussed in the opinion.  One would think that if the original stop was found lacking that it would affect more than the later administrative DL suspension. 

In a split decision a panel of the Kansas Court of Appeals has held that during a DUI investigation that a pre-breath-test request to consult an attorney is valid and should be honored following the officer’s testing.

Thomas Kerrigan was stopped for a traffic violation and during the event the officer detected signs of intoxication. After being charged with DUI, Kerrigan moved to suppress the Intoxilyzer evidence on multiple grounds, one being that the officer had not honored his request to consult an attorney. The trial court found that even though the testimony conflicted, that Kerrigan had requested to consult an attorney at least once prior to the end of testing. Further, it found that Kerrigan had not requested an attorney after the completion of the testing. Those findings set up a need for court interpretation of the 2018 legislative amendments to K.S.A. 8-1001(c)(1).

The statute in question is K.S.A. 2019 Supp. 8-1001(c)(1) and it currently states:

“(c) When requesting a test or tests of breath or other bodily substances other than blood or urine, under this section, the person shall be given oral and written notice that:

(1) There is no right to consult with an attorney regarding whether to submit to testing, but, after the completion of the testing, the person may request and has the right to consult with an attorney and may secure additional testing.”

A little history helps here. In the 2015 Dumler v. KDOR case, the Kansas Supreme Court had held that language in the 2009 version of K.S.A. 8-1001 “does not say that a request to invoke that right of consultation must await the completion of testing.” In response to Dumler, the Legislature amended K.S.A. 8-1001 to include the current “but, after the completion of the testing . . . .”

Even with that background, Kerrigan argued that the law had not really changed, and that his right to consult an attorney “pre-breath test” stayed valid throughout the event. Surprisingly, two of the panel judges agreed finding that the phrase “but, after the completion of the testing” is ambiguous and thus Kerrigan should win here.

The third member of the panel, Judge Kathryn Gardner, would have none of it. She would have held that the statute is clear. “The plain language of the statute says that after the completion of the testing the person may request to consult with an attorney. It includes no similar language as to any earlier request. Thus, although an officer may choose to honor a request made before or during the breath test to consult with an attorney, an officer has no statutory duty to do so.” However, Judge Gardner lost in the 2-1 vote.

As of November 11, 2022, the State had not yet requested that the Kansas Supreme Court review the panel’s divided decision. So, bottom line for the foreseeable future, whenever a DUI suspect requests to consult an attorney about testing, that request will remain valid and should be honored at the end of the officer’s testing.

(First published in the Kansas Sheriff magazine, Fall, 2022)

The world of ever-improving technology is difficult for lawmakers and courts.  Revising statutes and evolving court opinions are both time consuming and unpredictable.  It seems that law enforcement finds innovative ways to use new technology, but then waits years to hear whether those innovations are constitutional.  

In the thermal-imaging case of Kyllo v. United States, 533 U.S. 27 (2001), the Big Court decided that there is a reasonable expectation of privacy where the government “uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a search and is presumptively unreasonable without a warrant.”  Although the scientific facts of Kyllo are still debated, suffice it to say that changes in technology have had a great effect on both law enforcement success and on how courts view the Fourth Amendment’s “expectation of privacy.”  The latter has resulted in needing more search warrants.  Since Kyllo (and assuming that no consent was involved), search warrants are now required for GPS trackers (U.S. v. Jones, 565 U.S. 400 (2012)); dog sniffs near a home (Florida v. Jardines, 133 S.Ct. 1409 (2013); cell phones (Riley v. California, 573 U.S. 373 (2014); and CSLI [cell-site location information] from third-party service providers for a suspect’s cell phone (Carpenter v. U.S., 138 S.Ct. 2206 (2018).

In the next couple of years, we may well be adding to that list the warrantless law enforcement use of pole cameras.  The current issue with polecams appears to be the length of time the cameras are in use.  Some courts have recently held that 2 months is too long without a warrant, while others have held that 18 months appears fine.  

Until only a few years ago, the use of pole cameras was not viewed as a Fourth Amendment search and thus did not require a search warrant.  That was because courts consistently held that a person does not have an expectation of privacy in those portions of their lives and the exteriors of their homes that are in public view.  Kansas state and federal courts continue to support that view.  However, other courts are not so sure, because of what has become known as the “mosaic theory.”

As one Kansas senior federal trial judge recently said, “broadly speaking, the mosaic theory holds that, when it comes to people's reasonable expectation of privacy, the whole is greater than the sum of its parts.  More precisely, it suggests that the government can learn more from a given slice of information if it can put that information in the context of a broader pattern, a mosaic.  Thus, under the mosaic theory, courts apply the Fourth Amendment search doctrine to government conduct as a collective whole rather than in isolated steps, and consider whether a set of non-searches aggregated together amount to a search because their collection and subsequent analysis creates a revealing mosaic . . . [t]he mosaic theory first appeared in Fourth Amendment jurisprudence in [the GPS case mentioned above].  There, the government's use of a GPS device to monitor a car's location for twenty-eight days was a Fourth Amendment search under the reasonable-expectation-of-privacy test.  The [lower court] relied on the “mosaic theory” to explain why the month-long GPS monitoring of the car constituted a Fourth Amendment search: [W]e hold the whole of a person's movements over the course of a month is not actually exposed to the public because the likelihood a stranger would observe all those movements is not just remote, it is essentially nil. It is one thing for a passerby to observe or even to follow someone during a single journey as he goes to the market or returns home from work. It is another thing entirely for that stranger to pick up the scent again the next day and the day after that, week in and week out, dogging his prey until he has identified all the places, people, amusements, and chores that make up that person's hitherto private routine.” 

All of the cases so far tend to have the same general facts: 1) a warrantless placing by law enforcement of a video camera on a pole in a public space aimed at a particular home, but sighted so that the interior of the home cannot be viewed; 2) the camera usually operates and records 24/7; 3) the video footage can be stored indefinitely for later review; 4) the camera can pan left and right, tilt up and down, and zoom in and out while viewing the footage live; and, 5) it is agreed that the camera can capture a suspect’s everyday habits and routines over a long period of time.  

In 2017, a majority of the South Dakota Supreme Court held that warrantless use of a pole camera for two months was a search and required a warrant.  The state court did not explain exactly when, during that two-month period, the legal, non-search surveillance transformed into an illegal, search surveillance.  In 2021, the Colorado Supreme Court followed South Dakota holding that three months of warrantless camera surveillance constituted a search under the Fourth Amendment, and thus required a warrant. 

The federal courts too are now reviewing their positions on the cameras.  In 2020, the 6th Circuit federal court of appeals reaffirmed its earlier view that there is no expectation of privacy in things that can be viewed by the public.  In 2021, the 7th Circuit held that an 18-month duration of the government’s warrantless use of a pole camera “was concerning” but still permissible.  This summer, an en banc (entire court) opinion of the 1st Circuit only added to the confusion.  That federal court gave the government the win in U.S. v. Moore, 2022 WL 2072086 (1st Cir. 2022) but the judges split 3-3 on why.  Three of the judges took the majority view that pole cameras do not invade any reasonable expectation of privacy; but, importantly, the other three judges thought just the opposite and only agreed on the outcome in the case because the good faith exception to the exclusionary rule applied.  What has government attorneys in the 1st Circuit wary is that the first three judges are all retiring, leaving the “dissenting” group of three judges to hear and decide future pole camera cases.  The Big Court has so far declined to become involved in any of the cases, even though there is a split between the state and federal courts over what the Fourth Amendment demands.   

So, what is the takeaway for Kansas officers thinking about employing a pole camera in one of their investigations?  The best practice answer is that should probable cause already exist to place a camera (maybe not enough to search the house, but enough for a camera), then bullet-proof the pole camera evidence by seeking an early search warrant.  If that is not possible, then be aware that the law on the lengthy-use of warrantless pole cameras recording a home is in flux and limit the length of time your pole camera is actually used without a warrant.    

As we wait for warrantless pole cameras to work themselves through the court system, and for courts to decide the limits of a person’s expectation of privacy, it is easy to think about the next big constitutional questions in law enforcement: the searches of computer-laden and Bluetooth-capable cars, boats and aircraft used in crimes, and the constitutional limits on the law enforcement uses of drone aircraft.  Those issues are sure to keep many lawyers employed.        

For further research and understanding: Positive: U.S. v. Tuggle, 4 F.4th 505 (7th Cir. 2021); U.S. v. May-Shaw, 955 F.3d 563 (6th Cir. 2020); U.S. v. Hay, 2022 WL 1421562 (D.Kan. 2022); U.S. v. Jackson, 213 F.3d 1269 (10th Cir. 2000)(vacated on other grounds); U.S. v. Cantu, 684 Fed.Appx. 703 (10th Cir. 2017); Negative: State v. Jones, 903 N.W.2d 101 (S.D. 2017); People v. Tafoya, 494 P.3d 613 (Colo. 2021).

In 2019, a homeowner called 911 at 1:27 a.m. concerned that an unknown person was knocking on the home’s front door.  911 dispatched officers to the “suspicious character” call.  When the first officer arrived, he saw a nearby van with its headlights on.  The officer attempted to approach the van on foot, but the van drove off.  A few minutes later a second officer found the same van without its lights parked a block or so away in a dark, overgrown alley.  The second officer blocked the alley and turned on his red lights.  Officers approached the van, contacted the occupants, and detected the odor of marijuana.  The vehicle was searched, cocaine was found, and Carlos Bates was charged in state court.

Carlos filed for suppression of the cocaine alleging that the officers did not have reasonable suspicion to initially detain he and the van (blocking the alley and red lights, which led to the detection of the MJ odor and the search).  The officers testified that the following facts made them suspicious: 1) knocking on a house so early in the morning spooking the homeowner; 2) the neighborhood had seen “a lot” of burglaries and gang activity; 3) in recent house burglaries the events were preceded by knocking on the front door to see if anyone was home; 4) the officers had arrived quickly and the van was the only apparent source for the door knocking; 5) [although it was uncertain whether the van occupants actually saw the first officer approach on foot], driving away just as the first officer attempted to contact the van; and, 6) almost immediately finding the same van blacked out nearby in an overgrown alley.

Surprisingly, the trial judge focused on the officers’ testimony about their uncertainty of what crime might have been being committed that night, and held that the officers obviously did not think they had reasonable suspicion of a crime, and thus they had no authority to make a valid investigatory (Terry) temporary detention.  But, then the trial judge went on to hold that the officers did have grounds to have made a public safety stop (where officers are authorized to check on the safety and welfare of persons but where no criminal investigation is allowed).  Hmmm.

Carlos was convicted and appealed to the Kansas Court of Appeals.  An appeals panel later held that the trial judge was right to deny the suppression motion, but for the wrong reason.  The panel found that the officers (even though they were uncertain in their testimony about a particular crime) did have reasonable suspicion and authority to temporarily detain the van.  Having lost again, Carlos asked the Kansas Supreme Court to review all of that back and forth litigation, and the big Court agreed.

A few weeks ago, our state Supreme Court affirmed denial of the suppression motion agreeing with the Court of Appeals that based upon the totality of the circumstances of the above facts, and the reasonable inferences therefrom, that by the time the officers had approached the darkened van in the alley, the officers had reasonable suspicion that a crime had been, was being, or was about to be committed.  The Court went into detail to remind Kansas judges that the reasonable suspicion standard requires consideration of the “whole picture.”  Although a mere “hunch” by an officer is insufficient, reasonable suspicion is a lesser standard than probable cause.  Courts are not to use a “divide and conquer” analysis by pigeonholing facts into “innocent” or “guilty” because in isolation some facts may well have wholly innocent explanations but when viewed within the “whole picture” can support reasonable suspicion. 

It is apparent to those who have watched the Court for decades that changes in Court membership the last few years has had an impact on how the Court views the issue of reasonable suspicion.  For too long Kansas has had an arbitrarily-set high bar for the existence of reasonable suspicion.  Hopefully we are returning to the original standard contained in Terry v. Ohio. 

Great Decision.

In 2019, Abade Irizarry, a “YouTube Journalist” was from a public place videoing a night-time DUI arrest by Lakewood, Colorado police officers.  Officer Ahmed Yehia arrived shortly after the videoing began, and allegedly stood in front of Irizarry shining a flashlight into Irizarry’s camera.  Irizarry later sued the officer in federal court under 42 U.S.C. 1983 alleging a violation of Irizarry’s First Amendment rights.  Section 1983 provides that a person acting under the color of state law who “subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured.”

The trial court determined that even if that were all true, Officer Yehia was entitled to qualified immunity because the violation was not one of clearly-established law in the 10th Circuit (covering the states of Kansas, Oklahoma, Colorado, and New Mexico), and the judge dismissed the case.  Irizarry appealed and the 10th Circuit has recently reversed.

“A clearly established right is one that is sufficiently clear that every reasonable official would have understood that what he is doing violates that right.”  Based upon caselaw in six other circuits beginning in 1995, and on a 2017 10th Circuit case called Western Watershed Project v. Michael, the appellate panel said that a reasonable officer would have known what Officer Yehia was doing was wrong.  The panel said that a person, in this case a “journalist,” has the right to video police performing their duties in public subject to reasonable time, manner, and place restrictions. 

So, the case was sent back to the trial court, qualified immunity will not be a defense, and the case will go to trial on its own facts.