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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Great Decision.

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

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

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

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

(Author: Colin Wood; Reprinted with permission of the Kansas Sheriffs Association)

“History is a guide to navigation in perilous times.  History is who we are and why we are the way we are.”

Historian David McCullough

A Short History: Police Use of Force

The evolution of the police use of force is interesting.  There are no doubt a few officers still working who remember when the lawful use of deadly force included shooting not just armed and dangerous felons who had committed serious crimes, but the shooting of all fleeing felons.

The Common Law is law that is derived from prior judicial decisions rather than from statutes enacted by legislative bodies.  Our early courts looked to English Common Law until the new state and federal governments could get caught up with our new nation’s legal needs.  Legislatures and Congress have since codified many Common Law rules.

There were two general Common Law rules concerning use of force brought to our shores by the early colonists: 1) a prohibition against the use of deadly force to stop a fleeing misdemeanant; and, 2) a privilege to use deadly force to stop a fleeing felon.  Over the following 200 years, different states and law enforcement agencies enacted laws and policies on use of force, some retaining those historic Common Law rules, and some using more restrictive language.  By 1960, less than half of the states allowed deadly force in all fleeing felon cases.  Some restricted deadly force to certain felonies, or to violent felonies, or only when the felon was otherwise dangerous.  

Until the 1980s, Kansas followed the original Common Law rule as contained in early versions of K.S.A. 21-3215: “[a]law enforcement officer, or any person whom he has summoned or directed to assist him, need not retreat or desist from efforts to make a lawful arrest because of resistance or threatened resistance to the arrest. He is justified in the use of any force which he reasonably believes to be necessary to effect the arrest and of any force which he reasonably believes to be necessary to defend himself or another from bodily harm while making the arrest. However, he is justified in using force likely to cause death or great bodily harm only when he reasonably believes that such force is necessary to prevent death or great bodily harm to himself or another person, or when he reasonably believes that such force is necessary to prevent the arrest from being defeated by resistance or escape and the person to be arrested has committed or attempted to commit a felony or is attempting to escape by use of a deadly weapon, or otherwise indicates that he will endanger human life or inflict great bodily harm unless arrested without delay.”

Tennessee law was similar in allowing deadly force to stop the escape of any fleeing felon providing that “[i]f, after notice of the intention to arrest the defendant, he either flee or forcibly resist, the officer may use all necessary means to effect the arrest.”

One evening in October 1974, Memphis police officers Elton Hymon and Leslie Wright were dispatched to a burglary-in-progress call.  Upon arriving and contacting the reporting-neighbor, Officer Hymon went to the rear of the house.  Almost immediately out of the back door ran Edward Garner who had to then quickly stop at a six-foot fence.  Using a flashlight, Officer Hymon was able to determine that Garner was apparently unarmed, was about 16 or 17 years old, and was about 5’5” or 5’7” tall.  Officer Hymon hollered “police, halt.”  When Garner started to climb the fence Officer Hymon decided that if Garner was able to go over the fence that Garner would probably escape arrest.  Hymon shot and killed Garner.  Ten dollars and a purse taken from the house were found on Garner’s body.  

Tennessee state law and department policy supported the shooting, but Garner’s father sued in federal court alleging violation of Edward’s civil rights.  After a three-day bench trial, the district judge held that Officer Hymon had employed the “only reasonable and practicable means of preventing Garner’s escape.  Garner had ‘recklessly and heedlessly attempted to vault over the fence to escape, thereby assuming the risk of being fired upon.”  On appeal, the Sixth Circuit Federal Court of Appeals affirmed the district court.

Eleven years after the shooting, the United States Supreme Court voted 6-3 in Tennessee v. Garner to reverse.  The majority reminded the lower courts and law enforcement that “whenever an officer restrains the freedom of a person to walk away, he has seized that person,” that such seizures are Fourth Amendment events, and seizures under the Fourth Amendment must be “reasonable.”  Holding that the use of deadly force to prevent the escape of all felony suspects no matter the circumstances is constitutionally unreasonable.  “It is not better that all felony suspects die than that they escape.  Where the suspect poses no harm resulting from failing to apprehend him does not justify the use of deadly force to do so.  It is no doubt unfortunate when a suspect who is in sight escapes, but the fact that the police arrive a little late or are a little slower afoot does not always justify killing the suspect.”

However, the Big Court also held that “[w]here the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent the escape [of a felon] by using deadly force.  Thus, if the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given.”  

So today, in Kansas, state law authorizes the use of deadly force to effect arrests in the following scenarios, “ . . . [h]owever, such officer is justified in using deadly force only when such officer reasonably believes that such force is necessary to prevent death or great bodily harm to such officer or another person, or when such officer reasonably believes that such force is necessary to prevent the arrest from being defeated by resistance or escape and such officer has probable cause to believe that the person to be arrested has committed or attempted to commit a felony involving death or great bodily harm or is attempting to escape by use of a deadly weapon, or otherwise indicates that such person will endanger human life or inflict great bodily harm unless arrested without delay.

That said, then how do courts determine “reasonableness” in use of force cases?  Ironically, while Garner was pending before the Big Court, the event that would lead to that “reasonableness” answer was occurring.  On November 12, 1984, in Charlotte, North Carolina, diabetic Dethorne Graham believed that he was having an insulin reaction.  Going into a convenience store for orange juice, he decided that he could not wait in the long line to pay, so he quickly left the store.  Officer M.S. Connor noticed the activity and after Graham got into a friend’s car, Officer Connor stopped the car apparently suspicious of Graham’s quick entry and exit from a business.  Graham continued his strange behavior by running around the car and passing out on the curb.  Officer Connor thought Graham was intoxicated.  More officers arrived and Graham was handcuffed.  Graham’s friend tried to convince the officers of the insulin problem but to no avail.  After an hour, and finding from the convenience store staff that no crime had occurred, Graham was released.  Because Graham believed that he had suffered physical injuries during the event, he sued Officer Connor and others for using excessive force during the encounter.

The federal trial court analyzed the case under the then-existing four-factor test for excessive force claims: 1) the need for application of force; 2) the relationship between that need and the amount of force that was used; 3) the extent of the injury inflicted; and, 4) whether the force was applied in a good faith effort to maintain and restore discipline or [was] maliciously and sadistically [applied] for the very purpose of causing harm.  The judge found that the amount of force used against Graham was “appropriate under the circumstances . . . there was no discernable injury inflicted . . . and the force used was not applied maliciously or sadistically . . . but in a good faith effort to maintain or restore order in the face of a potentially explosive situation.”  Graham appealed but lost before the federal circuit court of appeals when it decided that the test used by the trial court was the correct one.  

Later, the Big Court in a 9-0 decision rejected “this notion [of the lower courts] that all excessive force claims brought under §1983 are governed by a single generic standard [the four-part test].  “Where, as here, the excessive force claim arises in the context of an arrest or investigatory stop of a free citizen, it is most properly characterized as one invoking the protections of the Fourth Amendment, which guarantees citizens the right ‘to be secure in their persons . . . against unreasonable . . . seizures of the person.”  

“Not every push or shove, even if it may later seem unnecessary in the peace of a judge’s chambers, violates the Fourth Amendment.  The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation . . . An officer’s evil intentions will not make a Fourth Amendment violation out of an objectively reasonable use of force; nor will an officer’s good intentions make an objectively unreasonable use of force constitutional.”

So, the modern test for police use of force claims was held to be: “the reasonableness of a particular use of force [lethal and non-lethal] must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.”

For further research and understanding:Tennessee v. Garner, 471 U.S. 1 (1985); Graham v. Connor, 490 U.S. 386 (1989); K.S.A. 21-5227.

Colin

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.

U.S. Supreme Court Update

            The Big Court is three months into its 2021-2022 term.  There are only three cases to report on: two have already been resolved, and there is one to watch.

The Court has already, without oral argument, reversed the 9^th Circuit and the 10^th Circuit concerning lawsuits against police officers in California and Oklahoma.  The Court sent the matters back for another look and reminded those federal appellate courts that to deny qualified immunity to government employees, the court has to point to a past case with nearly the exact same facts.  Only with such a case can a court then hold that a reasonable police officer would have known that his or her actions would be unlawful.  See City of Tahlequah v. Bond, Docket No. 20-1668; Rivas-Villegas v. Cortesluna, Docket No. 20-1539.

            Late last week, the Court accepted the only other street law enforcement case this term: Vega v. Tekho, Docket No. 21-499, involves a California sheriff deputy being sued for failing to give the Miranda warning to a suspect.  When the suspect was later acquitted by a jury, the suspect sued the officer alleging that the Miranda warning is a constitutional right and that he was damaged by the officer’s failure.  A 9^th Circuit panel agreed with the suspect.  Because there is currently a split in the federal circuit courts about whether the Miranda warning is a right, or only a court prophylactic rule of evidence admission, the Big Court accepted the case to decide.  Kansas is in the 10^th Circuit and the 10^th has previously held that the Miranda warning is a rule and not a constitutional right.  Oral argument on Vega has not yet been set but we should have a decision by summer.  Interesting question.  Reviewing the long line of the Big Court’s Miranda warning cases, it will not be surprising if the 9^th Circuit is reversed.

[Note: The following appeared recently in the Kansas Sheriff magazine, Fall 2021 edition.  Placed on the KPOA Point of Law page with permission of the Kansas Sheriffs Association]

“It is always the right time to do the right thing.”
Martin Luther King Jr.

What is Brady/Giglio, and as an agency administrator why should I care?  The short answer is the Constitution requires the government to affirmatively provide to all criminal defendants both exculpatory (favorable) evidence and impeachment (credibility) evidence concerning government witnesses, including law enforcement officers.  The longer answer is that because the obligation is grounded in the Constitution, it is not subject to narrowing through state law or departmental policy, and violations can result in the dismissal of a prosecution, reversal of a conviction, and/or court or license action against prosecutors, law enforcement administrators and officers.  Although required by the courts for over half a century, the issues surrounding criminal justice fairness and officer credibility have been subjected to new scrutiny.  The result has been a heightened defense and public awareness of Brady/Giglio requirements.  

In Brady v. Maryland, the United States Supreme Court determined that prosecutors have an unqualified obligation to turn over all evidence favorable to an accused when the evidence may be material either to guilt or punishment.  In Giglio v. United States, the Big Court held that certain information concerning government witness credibility must also be disclosed to the defense. 

The disclosure obligation goes well beyond the case prosecutor to include “all information in the possession of any state or local officer.”  “There is no ambiguity in our law.  The obligation under Brady and Giglio is the obligation of the government, not merely of the prosecutor.  Exculpatory evidence cannot be kept out of the hands of the defense just because the prosecutor does not have it, where the investigating agency does.”

Evidence is considered exculpatory if it “tends to disprove a fact in issue which is material to guilt or punishment.”  And, evidence can be exculpatory without being exonerating such as: failure of a witness to identify the defendant, information that links to the crime another person, and information that casts doubt on accuracy of some evidence. 

Witness impeachment evidence includes: plea agreements between the witness and the government, benefits promised or given to witnesses (including immigration assistance), certain prior convictions, prior inconsistent statements, evidence of bias, and evidence bearing on a witness’s character for truthfulness.

The Logistics

So, we understand our agency’s constitutional obligation to provide to the defense all of the favorable and unfavorable information that we gather in our investigations.  And, that duty seems pretty straight forward.

We also know that we will need to turn over impeachable information about all of the witnesses that the prosecutor will call to testify, including our agency’s officers and employees.  But, as a practical matter, how does the impeachment information process work?  

Depending upon the local prosecutor’s policy, many agencies currently maintain a “Brady/Giglio List” that contains the names of officers and other employees that may be subject to disclosure because of past events reflecting upon the employee’s character or actions.  Other agencies may not maintain a formal list, but could be sufficiently aware of names and events that would require disclosure.  Whether a list is maintained or not, disclosure of impeachable information is still a legal duty.

Some prosecutors wish to decide witness credibility issues on a case-by-case basis.  Others have decided that they will not accept a case or a warrant affidavit from an officer-witness who is Giglio-compromised.  The extent of the prosecutor’s authority is: 1) to require law enforcement agencies to participate in the Brady/Giglio information gathering process; and, 2) to report witness credibility issues.  Whether Giglio-compromised employees remain employed is determined by the law enforcement agency head.  For a variety of reasons, some agencies retain a compromised employee and assign them to duties not directly related to criminal investigations that might require sworn court testimony.  Other agencies terminate Giglio-compromised employees because either reassignment is not possible, or because the agency’s ethical standards do not allow for employees with agency or court sustained credibility issues.   

A typical Brady/Giglio inquiry might start with a defense inquiry or an Open Records request to the prosecutor.  The request should be in writing, and will find its way to the law enforcement agency.  The agency’s legal advisor should be involved early and the agency would then make a good faith search of its records.  Personnel records are usually closed, but there may be times when portions could be released under a protective order and/or subject to an in-camera review by a judge.  The agency’s records findings are reported to the prosecutor who can then make a decision on whether the criminal prosecution will continue and the potential government witness be called to testify.  

Should the prosecutor wish to move forward, then with the legal advisor’s help the information can be released to the defense, or any legal objections be litigated in court.  Agencies should refrain from automatically releasing information without in-house legal review due to the multiple privacy issues related to law enforcement and personnel records.  A new and separate written record should be created to track the actions taken and the documents reviewed and/or released concerning defense requests for Brady/Giglio information.

Should an agency not currently have a Brady/Giglio policy and procedure in place for the receipt, review, litigation and disclosure of information, it is recommended that one be created sooner than later.  Brady/Giglio requests tend to be time-sensitive and trying to figure out what to do after receiving a request is difficult at best.

For further research and understanding: Brady v. Maryland, 373 U.S. 83 (1963); Giglio v. U.S., 405 U.S. 150 (1972); Kyles v. Whitley, 514 U.S. 419 (1995); U.S. v. Agurs, 427 U.S. 97 (1976); Strickler v. Greene, 527 U.S. 263 (1999); State v. Nguyen, 251 Kan. 69 (1992); “ Brady & Giglio” Sample Prosecutor’s Policy, Kansas County and District Attorneys Association, August 2017; “Brady/Giglio Policy of the District Attorney” Sedgwick County District Attorney’s Office, August 2014; the author also notes his appreciation for the learned guidance of Laura Oblinger, Legal Advisor, Sedgwick County Sheriff’s Office.

The United States Supreme Court ended its 2020-21 term at the end of June. The Court handed down six street law enforcement cases. I have already reported to you on the Torres v. Madrid, (No. 19-292) case when it was issued in the Spring. Here are summaries of the other five cases:

Taylor v. Riojas
No. 19-1261

Qualified immunity continues a hot topic in the Big Court. Trent Michael Taylor was a Texas state prisoner that was in 2013 allegedly held naked for 6 days in multiple filthy, feces-covered and frigid cells. He sued prison officials but the district court (later affirmed by the federal circuit appeals court) held that under current case law a “few days” of such confinement was not unconstitutional and granted summary judgment to the officers. Further, should 6 days have been too many, the officers were still deserving of qualified immunity from liability because the law was not clear as to how many days counted as “a few days.”

The Big Court (7-1) vacated the lower courts’ decisions and sent the case back for further proceedings because “confronted with the particularly egregious facts of this case, any reasonable officer should have realized that Taylor’s conditions of confinement offended the Constitution.”

The Court was not finding liability, only ordering the lower courts to take another look under a more realistic standard.

Lombardo v. St. Louis
No. 20-391

Nicholas Gilbert was arrested in 2015 for trespassing and failing to appear on a traffic ticket. While in a PD holding cell, Gilbert attempted to hang himself. A number of officers responded and a lengthy struggle ensued. Officers finally got Gilbert into handcuffs and leg restraints. The problem was the officers held him face down for about 15 minutes as he continued to struggle. Gilbert quit breathing and died at a local hospital.

The family (through Jody Lombardo) sued the officers claiming excessive force. Interestingly, some of the evidence in the case showed previous local police training to not keep a already-restrained subject face down, and that such a position may cause a subject to continue to struggle to breathe rather than an actual “desire to disobey officers’ commands.” The trial court granted summary judgment to the officers concluding they were entitled to qualified immunity, and the Eighth Circuit Court of Appeals affirmed.

However, the justices (6-3) found that the lower courts had not given “careful attention to the facts and circumstances” of the case as is the test. “We express no view as to whether the officers used unconstitutionally excessive force” and the case was sent back to give the trial court “an opportunity to employ an inquiry that clearly attends to the facts and circumstances.”

Clearly another case where the Big Court is taking a second look at how the lower courts should review excessive force and grants of qualified immunity to government employees.

Caniglia v. Strom
No. 20-157

Edward Caniglia had a fight with his spouse and threatened to do harm to himself. The spouse later asked local police to check on Edward’s welfare. Officers met the spouse at the house, spoke to Caniglia, and he agreed to be taken by ambulance for an evaluation. Although the facts are disputed after that, once Caniglia left the scene the officers entered the home and removed two handguns.

Caniglia was released from care and asked for return of his firearms. The police refused. Caniglia sued claiming the officers entered his home without a search warrant. The officers responded that they entered the home based upon the “community caretaking” exception to the warrant rule. The officers believed that a 1973 Supreme Court case, Cady v. Dombrowski, involving the warrantless search of an impounded vehicle and the seizure of an unsecured firearm inside also covered the officers’ entry into the Caniglia home. Nice try, but no cigar.

The Big Court held (9-0) that vehicles are not homes. Homes are the most Fourth Amendment-protected location in the country. The community caretaking exception under Cady does not apply to a house. The case was sent back to decide whether some other exception to the warrant rule might apply under the particular facts such as consent, or exigent circumstances, or a state law mental health intervention law.

This case did not change any other existing warrant exceptions involving a home. It only holds that the police “community caretaking function” does not work for a house search.

Cooley v. United States
No. 19-1414

Joshua Cooley was parked on the shoulder of a Montana state highway within the boundaries of the Crow Reservation. A tribal police officer noticed the truck, thought it might need help, stopped and spoke with Cooley. During the event, the tribal officer noticed that Cooley was non-native, displayed DUI indicators, had two rifles on the seat and some white powder that was later identified as methamphetamine. Other officers including a federal Bureau of Indian Affairs arrived, Cooley was arrested, and he was later indicted on federal drug and gun charges.

Cooley moved to suppress the search arguing that tribal officers have no authority over non-Indians on a public road even when the road passes through a recognized reservation. The trial court agreed with Cooley. The Ninth Circuit Court of Appeals agreed with the trial court. The Big Court disagreed with both and reversed. The justices held (9-0) that “a tribal police officer has authority to detain temporarily and to search non-Indian persons traveling on public rights-of-way running through a reservation for potential violations of state or federal law.”

Kansas already provides for tribal officer jurisdiction under certain conditions and provisions as outlined in K.S.A. 22-2401a(3)(a).

Lange v. California

Arthur Lange was enjoying a nice California evening car ride by playing his radio loud and honking his horn at the world. Arthur’s pleasures drew the attention of a California Highway Patrol officer who, after following Arthur for a while, signaled with red lights for Arthur to stop. Instead, Arthur drove a little farther to his house stopping in the drive and walking into the garage. The officer followed.

Inside the garage, the officer detected DUI indicators, tested and questioned Arthur, and later arrested Arthur for DUI. Arthur asked the trial court to suppress what had happened in the garage since the officer did not have a search warrant or consent to have entered into the garage in the first place. The California courts sided with the officer holding that fresh pursuit of a misdemeanant categorically (always) provides exigent circumstances and thus an exception to the warrant rule. Following his conviction, Arthur appealed to the Supreme Court that “categorical” question.

The Big Court disagreed with California (9-0), albeit the justices did not agree as to the practical consequences. First, homes are the most constitutionally protected places in the country. Second, only rarely may the government enter a house without a warrant or consent.

Unlike the hot pursuit of a felon, misdemeanants vary widely in seriousness and therefore whether exigent circumstances are present should be determined on a case-by-case basis. Further, flight alone does not create an exigency. Instead, the new rule is FLIGHT + another factor, such as: imminent harm to others, threat to the officer or others, destruction of evidence, or later escape from the home.

In summary, the “flight of a suspected misdemeanant does not always justify a warrantless entry into a home. An officer must consider all the circumstances in a pursuit case to determine whether there is a law enforcement emergency. On many occasions, the officer will have good reason to enter . . . But, when the officer has time to get a warrant, he must do so – even though the misdemeanant fled.”

That said, the Court also stated that a “great many misdemeanor pursuits involve exigencies allowing warrantless entry;” that “in many, if not most, cases allow a warrantless home entry;” and, “no doubt that in a great many cases flight creates a need for police to act swiftly.” So, officers should be ready in the future to testify at more length based upon the particular case facts, and the officer’s training and experience, that a home entry was necessary.

Because California wrongly applied the “always” rule to misdemeanor chases, the case was sent back to the state court to determine in this particular case whether the officer acted reasonably. Under the facts of Arthur’s case, my money says that Arthur will need to buy a new toothbrush because he will be spending a few weekends as the guest of the state government.