Point of Law

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).

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