Kansas Peace Officers Association

P.O. Box 2592, Wichita, KS 67201
(316) 722-8433  |  kpoa@kpoa.org

"Co-operation and Justice"

State v. Harbacek, No. 124,513

04/27/2022 1:52 PM | Anonymous member (Administrator)

Eric Harbacek was a parolee living in the basement of a house.  In a weak moment, he decided to hassle the owners of the house and was arrested for domestic battery.  One of the arresting officers contacted Eric’s parole officer and the parole officer agreed that the officers should search Eric’s living quarters.  Officers found controlled substances, a firearm, and ammunition.  Eric was charged. 

Although state law required the officers to have provided the parole officer with a written report of the search by the close of business the day after the search, the report was late.  K.S.A. 22-3717(k)(3) says: “Parolees and persons on postrelease supervision are, and shall agree in writing to be, subject to searches of the person and the person's effects, vehicle, residence and property by any law enforcement officer based on reasonable suspicion of the person violating conditions of parole or postrelease supervision or reasonable suspicion of criminal activity. Any law enforcement officer who conducts such a search shall submit a written report to the appropriate parole officer no later than the close of the next business day after such search. The written report shall include the facts leading to such search, the scope of such search and any findings resulting from such search.”

Among other arguments, Eric seized on that late report saying that such mistake by the police should lead to suppression of the evidence found in his living area.  The trial judge agreed with Eric that the officers’ noncompliance with K.S.A. 22-3717(k)(3) warranted suppression.  The State appealed.  

Recently, a panel of the Kansas Court of Appeals reversed the trial court reminding the trial judge that Fourth Amendment searches should be suppressed by the district court only when the defendant demonstrates prejudice from a technical irregularity or when the violation of a statute affects an accused’s substantial rights.  The panel said, “[i]t is hard to fathom how Harbacek was prejudiced by the late filing of the report.  It would appear that the predominant reason for the filing of the report is to notify the parole officer if the search revealed any evidence that would support the filing of a parole violation and not for the purpose of protecting the rights of the parolee . . . Logic would also indicate that a parolee would not be prejudiced if the report was never filed in that the parole officer would be unaware of information that could be used for filing a parole violation.”

That said, however, officers should still be aware of the statutory parolee search reporting requirements, and whenever possible file the required reports on time.

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