Point of Law

The following summary is from 5 Informer 25 (authored by the Legal Division staff of DHS at the Federal Law Enforcement Training Center):

United States v. Maytubby, 130 F.4th 1194 (10th Circuit 2025)

A police officer interviewed Lance Maytubby at the police station regarding allegations of sexual abuse made by Maytubby’s nieces R.L. and Z.L. The interview, which was recorded on the officer’s body camera, took place in the break room at the police station with the dooropen. The officer told Maytubby that he did not have to talk, that he was not under arrest, and that he could leave at any time.

After Maytubby denied the allegations, the officer told him the two nieces’ stories were “dead-on similar,” and that the accusations had “stuff to back it up.” The officer then suggested that an “excuse” might explain what had happened, something like a mental-health issue, drinking, or drug use, but Maytubby continued to deny the accusations.

About a minute later, the officer told Maytubby that he needed to deliver an investigation report to the district attorney. He told Maytubby that he wanted the report to include all mitigating circumstances, like that Maytubby was a pastor who had made a mistake, had long been a “working man” and “family man,” and had just “acted out of character.” The officer reiterated he wanted to report that Maytubby made a mistake and that he was not “any kind of predator,” and that the behavior “hasn’t happened since.”

After he continued to deny the accusations, the officer explained that Maytubby’s denials put him in a difficult spot in reporting to the district attorney. The officer reminded Maytubby that he was not required to speak to him, and he reassured Maytubby that he was not going to arrest him that day. However, the officer also stated that his desire to include mitigating information in the investigative report depended on Maytubby’s admitting his sexual contact with his nieces. The officer told Maytubby, “I can’t help you out if you’re not honest to me, I just can’t. I can’t go in there and say, ... ‘Hey, he manned up. This is how it is. The guy acted out of character.’” Maytubby then told the officer that he wanted to go home, and the officer replied, “Okay.” A few seconds later, Maytubby confessed to sexually abusing his nieces.

The government indicted Maytubby for several sexual abuse-related offenses. Maytubby filed a motion to suppress his interview statements as involuntary, arguing that the officer’s coercive tactics overbore his will. The district court denied the motion. Upon conviction, Maytubby appealed.

The Fifth Amendment guarantees that “[n]o person ... shall be compelled in any criminal case to be a witness against himself.” For an incriminating statement to be voluntary, it must not be “the product of coercion, either physical or psychological.” Coercion may take the form of “acts, threats, or promises which cause the defendant’s will to be overborne.”

First, the court determined that the fact that the interview lasted less than thirty minutes, the tone of the interview was conversational, the interview occurred in a break room with the door open, and the interview included no physical punishment weighed in favor of finding a voluntary confession.

Next, the court found that the officer’s offer to include mitigating facts in his investigative report to the district attorney if Maytubby admitted his nieces’ accusations were proper. The officer never implied that he had control over the sentence Maytubby might receive but instead made general statements to Maytubby about the benefit of cooperating, which has repeatedly been held to be a permissible interrogation tactic. Based on these facts, the court concluded that Maytubby’s statements were voluntary as none of the officer’s statements were coercive, and Maytubby’s will was not overborne.

For the court’s opinion: https://cases.justia.com/federal/appellate-courts/ca10/23-7084/23-7084-2025-03-18.pdf

~ Colin

To increase the number of interesting cases available here, I have decided to start using a few case summaries written by trusted authors outside of Kansas.  I intend to continue writing on Kansas cases as time permits, but hopefully these additions will be worth your time too.

The following summary is from 5 Informer 25 (authored by the Legal Division staff of DHS at the Federal Law Enforcement Training Center)

A United States Supreme Court case handed down May 15, 2025:

Barnes v. Felix, No. 23-1239 (605 U.S. ____ (2025)) 

Officer Roberto Felix, Jr. conducted a traffic stop on Ashtian Barnes after hearing a dispatch from Harris County Toll Road Authority relaying the license plate number of Barnes’ vehicle as one with outstanding toll violations, and Felix subsequently saw the vehicle and matching plates on the Tollway. After Felix engaged his emergency lights, Barnes pulled off the road into the median on the left-hand side of the Tollway. After parking his patrol vehicle behind Barnes’ Toyota Corolla, Felix walked to the driver’s side window and requested Barnes’ driver’s license and proof of insurance. 

Barnes claimed that he did not have the requested documentation and informed Felix that the Toyota had been rented a week earlier in his girlfriend’s name. During the discussion, Officer Felix saw Barnes moving in the vehicle and told him to stop “digging around.” Felix also stated that he smelled marijuana and inquired if there was anything in the vehicle Felix needed to know about. Barnes stated that the documentation that Barnes requested “might” be in the trunk of the vehicle. 

At this time, Felix ordered Barnes to open the trunk. While this was taking place, the left turn signal continued to flash. As the trunk to Barnes’ Toyota opened, the left turn signal stopped flashing. Felix then ordered Barnes to step out of the vehicle, and the door could be seen beginning to open. At that point, the left turn signal began to flash again. As the signal began to flash again, Officer Felix ordered Barnes to stop moving and pointed his pistol at him. The Toyota moved forward and Officer Felix stepped onto the door sill. While the automobile continued driving forward with Officer Felix hanging on, Felix fired at least twice into the vehicle at Barnes. After a short distance, the Toyota came to a stop. Barnes was pronounced dead at the scene approximately eight minutes later. 

On appeal to the Fifth Circuit, the court reviewed whether Felix “was in danger at the moment of the threat that caused him to use deadly force against Barnes.” Since Felix was hanging on to the side of an accelerating vehicle at the moment he fired his weapon, the Fifth Circuit determined that he did not violate Barnes’ Fourth Amendment rights and, therefore, affirmed the district court’s finding of summary judgment for Felix. 

However, in a concurring opinion, the Fifth Circuit stated that the moment-of-threat doctrine overly limited their ability to determine whether an officer’s use of force was reasonable. Citing Scott v. Harris, which states that a Fourth Amendment analysis is a “factbound morass of reasonableness” by necessity, the Fifth Circuit claimed that they are deprived of potentially relevant facts at the expense of human life. 

In the case of Barnes, the facts that the initial crime was driving with an outstanding toll fee, that Felix jumped into the door sill of the moving vehicle, and that Felix fired within two seconds are a collection of facts that “merits finding that Officer Felix violated Barnes’ Fourth Amendment right to be free of excessive force.” Based, in part, on this concurring opinion, Barnes’ estate appealed this decision to the U.S. Supreme Court. A Writ of Certiorari was granted in this case and oral arguments were heard on January 22, 2025. Specifically, the question before the Court was whether the framework of objective reasonableness under Graham v. Connor and its analysis of the “totality of the circumstances” allows courts the ability to limit their review solely to the moment of the threat when evaluating a use of force case. 

Published on May 15, 2025, the Court held that the moment-of-threat doctrine applied by the Fifth Circuit is an “improperly narrowing” approach to reviewing the lawfulness of an officer’s use of force. To properly review such claims, a court must assess any and all of those relevant facts, including those events and circumstances that led up to the final moment, instead of merely focusing on the officer’s perceptions of the threat at the precise moment that force was applied. 

According to the Court, the constitutionality of an officer’s use of force is evaluated under the Fourth Amendment. Under Graham, this seizure is analyzed “from the perspective of a reasonable officer on scene” at the moment force is applied. The analysis also takes into consideration the balance of the individual’s Fourth Amendment interests against those governmental interests present in the totality of circumstances. Of interest, the Court highlighted that the review of the totality of the circumstances does not have any sort of time restraints, and that those facts “cannot be hermetically sealed off from the context in which they arose.” 

The Court recognized that a suspect’s conduct is “always relevant,” as it points to both the type and degree of threat a suspect represents. However, the Court identified a number of other categories of facts that are not as time sensitive, but still relevant to the totality of the circumstances. Officers’ attempts to control the encounter or otherwise give warnings may be relevant. The severity of the crime can also be given weight by the reviewing court. The Court acknowledged that “historical facts” will typically carry less relevance than those facts that are derived “in-the-moment,” but stated that there is no legal ruling that forbids a court from considering those historical facts. The Court further acknowledged that the totality of circumstances cannot be viewed with such “chronological blinders” in place. 

A secondary question, however, was left unaddressed. The Court stated that the lower courts never addressed whether, or how, a dangerous situation created by the officer’s own actions would be considered within the framework of objective reasonableness. This question was not before the Court and, therefore, was not taken up by the Court. 

In a concurring opinion authored by Justice Kavanaugh, he mentioned some of the legal considerations that make up the totality of the circumstances regarding traffic stops and pursuits. Primarily, Kavanaugh’s opinion focused on highlighting that the underlying traffic violation might suggest a lesser threat. However, flight and the suspect’s reasons for flight may often suggest a much higher type of threat than the traffic violation itself. Therefore, any evaluation of the totality of the circumstances for a use of force related event is incomplete if it does not take into account what actions the suspect made in their attempts to flee. 

For the court’s opinion: https://supreme.justia.com/cases/federal/us/605/23-1239/case.pdf

~Colin

A panel of the Kansas Court of Appeals recently reviewed an interesting DUI case involving reasonable suspicion for a “stop” on private property, and whether the 20-minute KDHE deprivation period had been violated. 

Two bicycle officers in a university off-campus recreation area heard loud talking and laughter coming from a car parked at a convenience store.  As the officers got closer to the car both could see the driver drinking what appeared from the shape of the bottle and the “distinctive color” of the liquid to be a beer.  The officers were going to make a voluntary contact but before that could happen the car shifted into gear.  That changed things for the officers.

One officer hollered at the driver to stop, and the other officer positioned himself behind the car with his bicycle emergency lights on.  The driver and the car stayed.  Because of that command, the red/blue lights, and the driver’s yield, the 4th Amendment required the officers to have had reasonable suspicion that a crime had been, was, or was about to be committed.  A DUI investigation followed, and Nicholas George was arrested.  Two suppression hearings and a trial on stipulated facts resulted in George being convicted.

On appeal, George argued first that the officers did not have reasonable suspicion of transporting an open container because: 1) the bottle and liquid could have been something other than beer; and, 2) even if there was reasonable suspicion for it having been beer, at the time the officers contacted the car the car was still on private property.  George’s second argument was that at the end of George’s later 20-minute deprivation period the officer administering the test noticed that the officer’s radio was on which might cause a radio frequency error.  The officer decided to restart the test but only waited an additional 14 minutes. 

The appellate panel held that “[w]hile George argues that he could have been drinking a nonalcohol beverage, that possibility alone does not diminish the reasonable suspicion standard.  To show reasonable suspicion for a stop, the State need not rule out the possibility that the suspect is engaged in innocent behavior.”  In other words, an officer does not have to be right, the officer only needs to be reasonable.  And here is the good part: “George also argues that K.S.A. 8-1599, the statute regulating open alcohol containers in moving vehicles, only prohibits such conduct on public roads.  He argues that he could legally drive his truck in a parking lot with an open container of alcohol.  But the undisputed evidence of George shifting his vehicle into gear created a reasonable and common-sense inference that he intended to drive out of the parking lot and onto a public street.  The reasonable suspicion standard applies to an officer’s reasonable belief that a suspect is committing or is about to commit a crime.”  Is that great or what?

As for the deprivation period issue, the panel said “[l]ogically, the argument is a nonstarter.  Without finding that the 20-minute deprivation period was compromised, there would be no reason to restart the clock.  George received a 34-minute deprivation period when the time was combined, which [more than] satisfied KDHE protocol for a minimum 20-minimum period.”  In other words, the radio frequency error did not compromise the real issue of whether George had ever placed anything into his mouth during the first 20 minutes.

~Colin

A panel of the Kansas Court of Appeals recently held that officers may not rely solely on  an Intoxilyzer 9000’s mouth alcohol detector to confirm that no residual alcohol remains in a  suspect’s mouth at the end of a deprivation period. 

In 2021, a PBT reading of 0.109 resulted in the arrest of Ronnie Hickles. At the station the arresting officer began the Intoxilyzer 9000 protocol. Hickles was instructed to swish his  mouth with water, the testing officer confirmed that Hickles’ mouth was empty, a timer was set  for the 20-minute deprivation period, and Hickles was told that putting anything into his mouth,  burping, or hard coughing may well bring alcohol into his mouth and compromise the test.  

During the deprivation period Hickles burped twice and though there was some  discussion about the burps, the testing officer did nothing further. The breath test was  administered, the Intoxilyzer 9000 did not indicate any residual alcohol in Hickles’ mouth, and  the test result was 0.107. The testing officer commented that the decrease from the PBT to the  Intoxilyzer 9000 was not as much as the officer had anticipated. KDOR suspended Hickles’ drivers license for a year, a district court later agreed with KDOR, and Hickles appealed. 

This week, the Court of Appeals reversed the suspension. The main question before the  Court was whether the testing officer “substantially complied” with the KDOR governing  protocol when the officer did not respond to Hickles’ multiple burbs, instead simply relying on  the Intoxilyzer 9000’s internal residual alcohol alert warning system. The judges agreed 3-0 that  the officer did not. The officer should have done more. In other cases officers had verbally  inquired of the test subject whether anything had entered their mouth or if uncertain restarted the  protocol and deprivation period. 

The panel stated: “As it stands, the KDHE’s protocol requires investigating officers to  keep the testing subject in their immediate presence and deprive him or her of alcohol for the 20- minute period immediately preceding the breath test. The fact the Intoxilyzer 9000 did not alert  to the presence of mouth alcohol is of no moment and is therefore insufficient to demonstrate that  [the officer] substantially complied with the KDHE protocol.” 

Maybe KDOR will ask the Kansas Supreme Court to weigh in (but a 3-0 panel vote  below can frustrate that effort), or maybe KDHE can adjust their protocol, or maybe KDOR  could find and litigate a case to allow for a better showing of the accuracy of the Intoxilyzer’s  mouth alcohol alert equipment.  

However, and assuming that none of that can happen: in the case of a suspect that for  whatever reason continues to burp or cough during a deprivation period then the testing officer  should think seriously about seeking a blood search warrant.

~ Colin

(Originally printed in Kansas Sheriff magazine, Fall, 2024; provided to KPOA with permission)

"Karma has no menu; you get served what you deserve.”
                                                                                    K.L. Slater

Late one evening in 2012, a Valley, Nebraska K-9 officer stopped for a traffic offense a Mercury Mountaineer driven by Dennys Rodriguez. At the end of the car stop, the officer asked Rodriguez for permission to walk the K-9 around the SUV. Rodriguez said no. Not deterred, the officer deployed his dog, and the dog alerted to the odor of controlled substances coming from the Mountaineer. During a subsequent search, a large amount of methamphetamine was found.

Rodriguez was charged in federal court where he attempted to suppress the search arguing that the officer did not have reasonable suspicion to continue the temporary detention for the dog sniff.

Following a hearing, the trial court held that under 8 th Circuit law the continued detention of drivers was “not constitutionally prohibited [as long as] they [the detentions] constitute only a de minimis intrusion.” Since the dog sniff only took about 8 extra minutes, the continued detention of Rodriguez without consent or reasonable suspicion was found “not of constitutional significance.” Rodriguez was convicted and sentenced to a lengthy period in prison. On appeal, the federal 8 th Circuit Court of Appeals affirmed the conviction.

Since in 2012 other federal circuit courts did not recognize the so-called “de minimis” rule of detention, Rodriguez asked the U.S. Supreme Court to resolve the split among the lower courts. And, in 2015, the Big Court held that there was no such thing as a “de minimis” amount of time a driver can be held for a dog sniff. Without consent or reasonable suspicion of other criminal activity, drivers are to be released as soon as an officer has completed the car stop’s “mission.” That “mission” is the enforcement action arising from the original traffic offense.

The Big Court vacated the 8 th Circuit’s judgment, and the case was “remanded for further proceedings consistent with” the opinion. Rodriguez had won the battle, but he quickly learned that he had actually lost the war.

A few months later when Rodriguez appeared for the remand hearing in the 8 th Circuit, he confidently argued that because the Big Court had agreed with him that the car stop was a constitutional violation, then the Exclusionary Rule should be invoked to suppress from evidence the seized methamphetamine. In other words, the Court should let him go.

The government, however, reminded the appellate court that just four years earlier, in a different case, the Supreme Court had said about the Exclusionary Rule: “The Fourth Amendment protects the right to be free from unreasonable searches and seizures, but is silent about how this right is to be enforced. To supplement the bare text, the U.S. Supreme Court has created the exclusionary rule, a deterrent sanction that bars the prosecution from introducing evidence obtained by way of the Fourth Amendment violation.”

“Exclusion [of evidence] is not a personal constitutional right, nor is it designed to redress the injury occasioned by an unconstitutional search. The rule’s sole purpose is to deter future Fourth Amendment violations. Where suppression fails to yield appreciable deterrence, exclusion is clearly unwarranted.”

“Responsible law-enforcement officers will take care to learn what is required of them under Fourth Amendment precedent and will conform their conduct to these rules. But by the same token, when binding appellate precedent specifically authorizes a particular police practice, well-trained officers will and should use that tool to fulfill their crime-detection and public-safety responsibilities. An officer who conducts a search in reliance on binding appellate precedent does no more than act as a reasonable officer would and should act under the circumstances. The deterrent effect of exclusion of evidence in such a case can only be to discourage the officer from doing his duty.”

So, what did all that mean? It meant that the K-9 officer was acting in good faith by following the 8 th Circuit’s “de minimis” law as it was on the day of the car stop. Since what the officer did was reasonable, then suppressing the methamphetamine would not and could not act as a deterrent to any police misconduct. Rodriguez was out of luck. He could not personally benefit from the Big Court’s 2015 change in the law that he had brought about.

Rodriguez had won big in the United States Supreme Court, but in the end, he went to prison anyway.

Additional reading see: United States v. Rodriguez, 575 U.S. 348 (2015)[Big Court decision]; U.S. v. Rodriguez, 799 F.3d 1222 (8 th Cir. 2015)[on remand decision]; and, Davis v. United States, 564 U.S. 229 (2011)[exclusionary rule].

The Kansas Court of Appeals last week handled an interesting K.S.A. 8-1001(p) “medical exception to an evidentiary breath test” case.  The substance of Amir’s 18-page appellate opinion is not important here, but the suggesting of a best practice under the all-to-familiar circumstances might be.

K.S.A. 8-1001(p) can be a defense to a test refusal: “Failure of a person to provide an adequate breath sample or samples as directed shall constitute a refusal unless the person shows that the failure was due to physical inability caused by a medical condition unrelated to any ingested alcohol or drugs.”  

David Amir was the subject of a DUI investigation.  When requested, he refused a breath test claiming that he was being medically treated for both asthma and COVID, and thus was unable to provide the breath volume required.  Though confusing in the court’s opinion, Amir then either requested and was refused a blood test, or it was Amir that was asked to take a blood test and he refused.  No matter.  Ultimately, no consent testing of any kind was done, the officer filed a test refusal with KDOR, KDOR suspended Amir’s drivers license, Amir appealed to the district court, court hearings were held, the district judge affirmed the DL suspension, Amir appealed to the state court of appeals, and that court has now affirmed the DL suspension.

The point here is: (and assuming that there was no unstated reason not to) had the officer sought a blood search warrant, much of that time-consuming legal back and forth would never have been necessary.  

K.S.A. 8-1001(a) says, “(a) Any person who operates or attempts to operate a vehicle within this state may be requested, subject to the provisions of this article, to submit to one or more tests of the person's blood, breath, urine or other bodily substance to determine the presence of alcohol or drugs. The testing shall include all quantitative and qualitative tests for alcohol and drugs. The test must be administered at the direction of a law enforcement officer, andthe law enforcement officer shall determine which type of test is to be conducted or requested.  

And, K.S.A. 8-1001(f) states, “ Nothing in this section shall be construed to limit the right of a law enforcement officer to conduct or obtain a blood or urine test of a person pursuant to a warrant under K.S.A. 22-2502, . . . ”  

So, when Amir refused to consent to a breath test for whatever reason, the officer could have sought a search warrant, had the blood drawn involuntarily, submitted the evidence for testing, and the prosecution and KDOR would have had Amir’s alcohol level results available.  Instead, way too many attorneys were paid to express their opinions about the validity of Amir’s health arguments concerning giving a voluntary breath sample.  

Bottom line: with very few exceptions, all breath test refusals should immediately result in blood search warrants being sought and executed.

~ Colin

More changes are coming to the state’s civil asset forfeiture act.  Senate Bill 458 was passed almost unanimously near the end of the legislative session and the Governor has since signed the bill into law.

Proponents of the bill would call the amendments overdue improvements to a generally broken public policy.  Law enforcement agency administrators will probably view the statutory amendments as unnecessarily making recovery of criminal proceeds even more difficult.  In some cases, probably impossible.  

Other than a few “statutory language clean up” provisions, the following are the 2024 changes effective July 1:  

1.  The list of crimes to which forfeiture applies (“covered crimes”) has been reduced. Simple possession of controlled substances will no longer be a forfeitable offense.  The controlled substance offenses that remain “covered crimes” are K.S.A. 21-5703; 21-5705; 21-5707; 21-5708(b); 21-5709(a), (b), (c), and (d); 21-5710, 21-5713(a), 21-5714 and 21-5716. 
   
   All other “covered crimes” listed in K.S.A. 60-4104 remain unchanged.  This change will probably affect the total number of small cash cases filed.  Forfeiture opponents call these smaller cases “rent money” seizures.
    

2. Protection from gross disproportionality (a small crime resulting in a large property forfeiture), always an 8th Amendment violation, has been in the Kansas forfeiture law since 1994.  The 2024 “reform” has simply highlighted the protection by reminding the court and parties in multiple statutory sections of the existing protection.  Even though the factors to be reviewed by a judge have been amended, there is little practical change other than the argument may arise earlier in the litigation.  Because constitutional case law holds that it is only upon a final forfeiture order that a court may reasonably entertain an 8th Amendment challenge, the practical effect of this change is small.
    

3. Seizing agencies will now have 14 days, down from 45, to find and employ a  forfeiture attorney to handle the seizure.  A violation of that timeline will require release of the property, but the claimant will act as a court trustee of the property and the State can still file the case.  A best practice would be to have a forfeiture attorney already identified.
    

4. Federal adoption of local and state seizures has been narrowed, but there are reasonable exceptions and agencies should still be able to obtain federal assistance in larger or complex cases.  The following are the exceptions to the federal adoption ban: seizures by joint task forces, or during a joint state-federal investigation; or when combined with a request for federal adoption of the parallel criminal case; or when a federal seizure warrant is involved; or any property involving a serious public safety concern; and, lastly, when the seized property is  valued at more than $25,000.00.
    

5. At seizure, officers may not “request, induce or otherwise coerce” a person who has asserted a right to the seized property to waive that right.  That would mean that once a person has told an officer that the seized property belongs to them, the officer may not attempt to persuade them differently.  That may be a rare occurrence, but administrators should probably review any waiver forms that their agency employs to confirm that the form does not contain such a waiver request.  By its plain language, the change does not prevent officers from asking preliminary questions about true ownership of the seized property like owner names, addresses, and associations to the seized property.
    

6. After the filing of a civil forfeiture action in court, but before any other litigation, a judge will need to review the seizing agency’s affidavit and to make a formal finding of probable cause for the seizure.  A claimant may later challenge the judge’s probable cause finding.
    

7. Should there be a parallel criminal case on file when the civil forfeiture action is brought, then there will now be an automatic stay of the forfeiture pending resolution of the parallel criminal case.  However, a judge may upon good cause lift the stay.
    

8. The State’s burden of proof has been raised from “preponderance of the evidence” to “clear and convincing” evidence.  
    

9. Known as “fee shifting,” and in addition to releasing the property, a seizing agency will now be ordered to pay to a successful claimant their attorney fees, litigation costs, post judgment interest, and any interest gained by the property during the litigation.  There is no good faith exception.  A successful claimant (with some exceptions) is a person that recovers “at least half of the aggregate value of the claimant’s interest” in the seized property.   Provided there are funds available, the payment can be made from the seizing agency’s state forfeiture fund.  If that is insufficient, then the seizing agency will be required to pay those costs from another agency fund.  Administrators should realize when evaluating future cases that in the past there have been highly-litigated federal forfeiture cases reported where the government has been ordered to pay claimants tens, and even hundreds, of thousands of dollars in attorney fees and costs. 

Bottom Line: It is recommended that administrators review their forfeiture guidelines and think through these upcoming changes in forfeiture law.  What will be difficult for the command staff will be forecasting individual cases that appear strong at seizure, only to go south at trial for a reason beyond the seizing agency’s control.  Those cases will be the expensive ones after July 1.

Colin

A few years ago, a Kansas police officer entered a local convenience store for a drink when an employee called to him about an unconscious woman on a bathroom floor. Although the officer did not know it at the time, the store had already called for an ambulance. The officer entered the small bathroom and saw an unknown woman on the floor, a hypodermic needle and a purse nearby. No one else was present. The woman appeared to be semi-conscious but she was unable to respond to the officer’s questions, including questions about her identity and what substance that she may have taken. The officer thought that if he could identify the woman that he might be able to run her name through dispatch and find whether she had a history of medical or drug abuse issues. The officer intended to provide that information to the then-arriving paramedics.

The officer decided to look inside of the purse for any form of identification. While looking, the officer found a sock. The officer felt an object inside the sock that, based upon his experience, he recognized as a drug smoking pipe. The officer told paramedics that they may well be dealing with a drug overdose.

The officer continued to look for identification in the purse and when it was found the officer immediately relayed the name to dispatch. He then opened the sock, finding a smoking pipe and “crystal-type meth crystals.” The searching officer provided the information and the purse to a second officer that had arrived with the ambulance crew. The second officer then went outside to give the woman’s name to paramedics who had by that time moved the woman to the ambulance in the parking lot. The entire incident took about seven minutes.

The woman was identified as Jessica Dixon, and based upon the search she was later charged in state court with possession of methamphetamine and drug paraphernalia. Dixon complained to the trial judge that the search of her purse was illegal because the officer did not have her consent, did not have a search warrant, and that no exception to the warrant rule existed under the facts of her case. The trial court denied suppression finding that the search of the purse fell under the emergency aid exception to the warrant rule, that the discovery of the sock was inadvertent, and that the illegal nature of the items inside of the sock was immediately apparent to the experienced officer. Dixon was convicted and appealed. In January of this year, four years after the incident, a panel of the Kansas Court of Appeals agreed with the trial court and held as follows.

Under both the federal and state Constitutions, warrantless searches and seizures by law enforcement officers are deemed unreasonable and invalid unless a recognized exception to the warrant requirement applies. The “emergency aid” exception applies when a law enforcement officer is aiding a person who is “seriously injured or imminently threatened with serious injury.” That warrant exception is usually associated with a warrantless entry into a home when officers are aware of a fight or otherwise are checking the welfare of a resident. However, the panel held that the exception would apply to Dixon’s situation too.

The Kansas Supreme Court has previously held that the emergency aid exception gives an officer only limited authority to “do no more than is reasonably necessary to ascertain whether someone is in need of assistance and to provide that assistance.” So, there are two initial questions to be answered about whether the exception should apply. First, does the officer reasonably believe that a person is in need of immediate assistance? If the answer is yes, then officers should remember that the authority to search will immediately terminate once the officer confirms that no one needs assistance, or when the necessary assistance has been provided. All searches under the exception are required to be “reasonably tailored to an officer’s attempts to aid the victim.”

With all of that in mind, in this case the officer had an objectively reasonable basis to believe that Dixon was seriously injured because she was on the floor and was unresponsive to his questions. The manner and scope of the search was also reasonable: the officer had acted immediately to aid Dixon, not only in communicating with her but in confirming that paramedics were enroute. While waiting for the paramedics, the officer searched the purse for identification and other information that would have directly assisted the arriving medical personnel.

Dixon argued that once the paramedics were on scene that the officer should have stopped searching. But, the appeals panel said that there is no bright-line rule that law enforcement is no longer expected to be a part of the continuing medical aid. The public policy behind the emergency aid exception is the need to protect life, and that such protection sometimes outweighs a person’s right to privacy. So, looking into the purse for identification and inadvertently finding the sock was justified.

But, what about the later search of the sock itself? Was that secondary sock-search lawful too?

The panel said yes. During an otherwise lawful search [of the purse], officers who feel an object whose criminal nature is immediately apparent have probable cause to search that object under the “plain feel” doctrine.

Bottom Line: “The officer’s warrantless search of Dixon’s purse was intended to provide emergency aid by providing medical personnel information to properly render treatment to Dixon. [The officer] had an objectively reasonable belief that Dixon needed emergency assistance and the manner and scope of his search was objectively reasonable. Thus, the search was justified under the emergency aid exception [and the plain feel doctrine] and the district court did not err by denying Dixon’s motion to suppress evidence.”

For further research and understanding: Mincey v. Arizona, 437 U.S. 385 (1978); Minnesota v. Dickerson, 508 U.S. 366 (1993); State v. Dixon, No. 124,970, Kansas Court of Appeals, January 26, 2024 (unpublished); State v. Smith, 59 Kan.App.2d 28 (2020); State v. Neighbors, 299 Kan. 234 (2014)

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).