Point of Law

Recently, a very divided Kansas Supreme Court dealt a blow to law enforcement immunity in vehicle pursuits when an uninvolved third-party is injured.  Only a few facts are necessary here because the Court did not actually resolve the lawsuit.  Instead, it decided a few legal issues and then sent the case back to the district court.  So, which party will ultimately prevail in this particular lawsuit is unknown at this juncture.  Based upon the following reviewed legal issues, the case will settle, or a judge or jury will decide it by applying these new standards to the facts in this particular chase event.  That said, it is the following reviewed legal issues that are the point of this summary. 

In 2010, a KHP Trooper was involved in a chase in Topeka involving a vehicle driven by Robert Horton.  The chase lasted about a minute and a half and covered about a mile.  The Trooper decided to end the chase and was about two-and-a-half blocks behind Horton when Horton ran through a red light and collided with a vehicle driven by Shelby Montgomery, an uninvolved third-party.  A passenger in Montgomery’s vehicle, Scott Bennett, was also injured.  Montgomery and Bennett sued.  Prior to trial, the district court judge granted summary judgment to the State and the Trooper.  Montgomery and Bennett appealed.  A split Court of Appeals panel reversed.  The State and Trooper appealed to the Kansas Supreme Court and it issued its opinion on June 26, 2020 on the following issues, all of which directly affect law enforcement officer immunity during a flee and elude event.

In a civil negligence claim like this one, a plaintiff must establish the existence of: 1) a duty of care owed to the plaintiff; 2) a breach of that duty of care; 3) an injury to the plaintiff; and, 4) the breach of that duty of care having been the proximate cause of the plaintiff’s injury.

First, K.S.A. 8-1506 “grants drivers of authorized emergency vehicles certain privileges that excuse them from following traffic laws under specified conditions.   Along with these privileges, subsection (d) provides: ‘The foregoing provisions shall not relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons, nor shall such provisions protect the driver from the consequences of reckless disregard for the safety of others.”  The Court emphasized that such a statutory duty is a “specific duty owed to all persons, unlike other general duties–like the duty to preserve the peace—which is owed to the public at large.”  That court holding results in injured individuals having the right to sue officers and their employers for a breach of the statutory duty in K.S.A. 8-1506. 

Second, for a breach of that duty to have occurred, a plaintiff must show that law enforcement drove “a vehicle under circumstances that show a realization of the imminence of danger to another person or property of another where there is a conscious and unjustifiable disregard of that danger.  This standard applies to the officer’s decision to initiate the pursuit of a fleeing suspect, the officers decision to continue that pursuit, and the officer’s manner of operating his or her vehicle during the pursuit.”  The majority opinion reminds us that the Court had in 2007 in Robbins v. City of Wichita implicitly held that K.S.A. 8-1506 imposed such a specific duty on law enforcement.  So, it being mentioned in this case should be nothing new.  However, it is not at all clear that the law enforcement community was aware of that 2007 “implicit” holding. 

Third, the Court defines proximate cause as a cause that “in natural and continuous sequence, unbroken by an efficient intervening cause, produces the injury and without which the injury would not have occurred, the injury being the natural and probable consequence of the wrongful act.”  “We also note a majority of jurisdictions have concluded that causation in police pursuits is a question of fact for the jury.  We now join this majority [of jurisdictions] and hold [that] law enforcement’s conduct during a pursuit can be the legal cause of a third party’s injuries.”

Fourth, the Kansas Tort Claims Act provides that governmental entities may be held liable for the negligence of their employees.  However, the KTCA also sets out an extensive list of immunities to that liability, including the “discretionary function exception” and the “method of providing police … protection exception”:

**Under the discretionary function exception government actors are immune from liability for “any claim based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a governmental entity or employee, whether or not the discretion is abused and regardless of the level of discretion involved.”  But, the Court majority held that because of the statutory duty to drive with due regard for the safety of all persons in K.S.A. 8-1506, an officer’s decision to pursue or to continue to pursue is not a discretionary function.  Thus, no immunity here for car chase decisions. 

**The method of providing police … protection exception “is aimed at such basic matters as the type and number of fire trucks and police cars considered necessary for the operation of the respective departments . . . a city is immunized from such claims as a burglary could have been prevented if additional police cars had been on patrol, or a house could have been saved if more or better fire equipment had been purchased. . . “  “[The] pursuit of Horton is not a basic matter of police protection, such as the number of personnel and cars necessary for the operation of the police department.”  Thus, no immunity here for car chase decisions. 

The vote on this case was 4-3.  The Court for this matter was made up of four justices and two court of appeals judges who were sitting in because of the two current vacancies on the Supreme Court.

Any changes to this new case law will probably have to be legislative and involve amending the KTCA list of exceptions, especially the definition of the discretionary function exception.

The United States Supreme Court has today reversed the Kansas Supreme Court in the traffic stop case of Kansas v. Glover.  The vote was 8-1 with Justice Sotomayor in dissent. 

The case facts were straightforward.  The route to the final resolution was less so. 

In 2016, a Douglas County deputy ran the tag on a truck the deputy was following.  It came back registered to Charles Glover Jr.  The deputy also learned that Glover’s driver’s license was revoked.  Having no information to the contrary, the deputy inferred that the registered owner was the driver.  The deputy stopped the truck.  Charles Glover Jr. was driving the truck.

The State charged Glover.  Glover filed a motion to suppress arguing that the information possessed by the deputy did not rise to the “reasonable suspicion” necessary for the stop.  The district court agreed and suppressed.  The State appealed, and the Kansas Court of Appeals reversed.  Glover appealed, and the Kansas Supreme Court reversed.  The State sought review by the United States Supreme Court, and three years after the stop, the State has prevailed.

The Big Court (so aptly-named by Director Larry Welch, KBI retired) initially responded by reaffirming comments from its past holdings: 1) reasonable suspicion is a less demanding standard that can be established with information that is different in quantity or content than that required to establish probable cause; 2) such a standard depends on the factual and practical considerations of everyday life on which reasonable and prudent men [and women], not legal technicians, act; 3) courts cannot reasonably demand scientific certainty . . . where none exists; rather, they must permit officers to make commonsense judgments and inferences about human behavior; and, that such judgments and inferences need not rule out the possibility of innocent conduct.

“Before initiating the stop, Deputy Mehrer observed an individual operating a 1995 Chevrolet 1500 pickup truck with Kansas plate 295ATJ.  He also knew that the registered owner of the truck had a revoked license and that the model of the truck matched the observed vehicle.  From these facts, Deputy Mehrer drew the commonsense inference that Glover was likely the driver of the vehicle, which provided more than reasonable suspicion to initiate the stop.”  [emphasis added].

The Big Court went on to remind the lower courts that officers may use commonsense, analyze probabilities, and may take into account knowledge gained in their personal lives.  In other words, reasonable suspicion analysis is not limited to an individual officer’s police training and experience. 

That said, the Court warned that its decision is narrow in scope.  “ . . .{t]he presence of additional facts might dispel reasonable suspicion.  For example, if an officer knows that the registered owner of the vehicle is in his mid-sixties but observes that the driver is in her mid-twenties, then the totality of the circumstances would not” amount to reasonable suspicion to stop the car. 

This is a very valuable decision in our quest to better understand what sets of facts and circumstances rise to reasonable suspicion.  And, it is a case that hopefully moves Kansas back toward the original standards of reasonable suspicion in Terry v. Ohio, 392 U.S. 1 (1968).    

In 2018, Shelbie Ellis, a female customer, entered a convenience store restroom but never came back out.  After 45 minutes the clerk called the police.  Later joined by a second officer, the first officer arrived and contacted Shelbie in the restroom.  After being asked if she was alright, Shelbie said that she was having stomach issues.  The officer did not ask if she needed medical attention, but did ask for Shelbie’s driver’s license.  Shelbie voluntarily gave over her license which the officer then kept.  The officer ran a warrant check with the information, asked further questions of Shelbie, but never returned the license.  The two officers and Shelbie later moved from the restroom to the parking lot to check for the arrival of Shelbie’s intended ride.  After some additional back and forth outside, the officer inquired about Shelbie’s drug use, and asked if he could search her purse.  Shelbie declined the search.  Within a few minutes the dispatcher told the officers that there was an outstanding out-of-county arrest warrant for Shelbie.  The officers arrested her on the warrant, and upon a search of her purse incident to the arrest, officers found methamphetamine and a pipe.  The event had lasted between 5 and 10 minutes.

After the trial court denied Shelbie’s suppression motion and found her guilty of the meth possession, she appealed.  A panel of the Kansas Court of Appeals recently reversed her conviction holding that the meth had been illegally seized and should have been suppressed.

First, the out-of-county arrest warrant and the case underpinning that arrest warrant is not affected by this illegal seizure holding.  Only the new meth evidence found in Shelbie’s purse, and the new and separate criminal case arising from the meth, has been damaged.    

Second, why then the suppression of the meth?  We have discussed this issue before, and Kansas law has been settled for some time. 

At the suppression hearing, the officer agreed that he had been dispatched on a welfare check, and that at no time prior to learning about the outstanding arrest warrant did he have reasonable suspicion that Shelbie had, was, or was about to commit a crime. 

“Welfare checks—which are constitutionally analogous to public-safety stops—fall under law enforcement’s community-caretaking function.  These encounters occur when an officer checks on a person’s welfare for safety or assistance reasons . . . A welfare check ‘is not for investigative purposes’ . . . Rather, it must be ‘divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.” 

Kansas courts use a three-part test to define the contours of a valid welfare check: 1) an officer has the right to stop or investigate when there are objective, specific, and articulable facts to suspect that a person needs help or is in peril; 2) if the person needs help, the officer may take the appropriate steps to render assistance; and, 3) when the officer believes that the person is no longer in need of assistance, any further actions constitute a seizure.  “These considerations differentiate welfare checks and public-safety stops—which are performed under law enforcement’s caretaking function—from investigative detentions [based upon reasonable suspicion of criminal activity] and arrests [based upon probable cause of criminal activity] . . .”

When an officer holds on to a driver’s license or other property, a reasonable person will not believe that they have the right to leave.  Legally, that means that Shelbie was being detained (whether the officer realized it or not), and because the officer did not have reasonable suspicion that a crime was being committed, that detention was unlawful.  Thus, because the detention was illegal any evidence flowing from the detention should probably have been suppressed.  [There are circumstances when the Exclusionary Rule would not have applied, but the panel held that those are not present here.  The State had also argued that Shelbie had voluntarily given over her license, but the panel dismissed that contention too because the officer had kept the license during the NCIC check and questioning.  “This court has held on multiple occasions . . . that an officer goes beyond the permissible scope of a welfare check or public-safety stop by retaining a person’s identification and running a records check for wants and warrants.”].

So, bottom line and best practice: officers should remember that they have no authority to compel identification from a person at a welfare check; and once it is found that the person does not need further assistance, then the officer should just leave.  Police practice or department policy or supervisor directions notwithstanding.  Such practices do not override the Constitution.

In Shelbie’s case, after Shelbie had made it clear that she did not need assistance: 1) the officers should have left; or, 2) at most, the officers could have asked for Shelbie’s affirmative consent to identify herself.  And, after obtaining the identification, the officers should have immediately returned the ID, walked away, run the warrant check away from Shelbie, and when it hit, re-contacted Shelbie and arrested her on the warrant.  It was the retention of the DL, the close remaining with Shelbie, and all of the unnecessary questioning that the panel justifiably did not like.

Lastly, there is an unfortunate comment by the panel in this case that the defense bar may cite to in the future.  The panel hints that no person’s identification obtained at a welfare check, even given voluntarily and under no-detention circumstances, can be used for a warrant/NCIC check because that police action would be a “criminal investigation.”  The panel’s comment is not supported in the case law, and interestingly the panel does not cite to any.  Why?  Probably because no person has an expectation of privacy in their personal criminal information inside of a warrant file or in the NCIC database.    

Colin

What exactly is the search authority of a Kansas law enforcement officer following a lawful arrest?  The issue is generally divided into an examination of the three distinct “areas” of space that exist at the location of every arrest: 1) the area made up of the arrestee’s person; 2) the area away from the arrestee’s person but still within the arrestee’s immediate control; and, 3) the area outside and away from #1 and #2.

#1.  Arrestee’s Person: By virtue of a lawful arrest, an arrestee has a reduced expectation of privacy in his or her person, their clothing, and in any containers within their clothing.  Courts have for a century held that following a lawful arrest the search “of the person” is reasonable under the Fourth Amendment because it protects the arresting officer from harm by locating and isolating weapons, and by preventing the destruction of evidence.  Thus, officers have blanket constitutional authority at every lawful arrest to search the person of all arrestees.

#2.  Arrestee’s Immediate Control: However, when the search area moves away from the arrestee’s person, a lawful arrest standing alone may not justify searching anything else.  At many arrests, a container like a backpack or a purse was being carried by the arrestee, or is found nearby.  The first question is: following the arrest, was the container in question still located within “the grabbing area” of the arrestee?  Courts will look to the number and relative locations of the officer(s) and the suspect(s), the time of day, and the general dangerousness of the particular situation.  If the arrestee has been handcuffed and/or removed from the container’s location (or vice versa), the search-incident-to-arrest authority to look into the closed container has probably evaporated.  Should an arrestee for some reason not have been restrained, and is still within the grab area, and the officer can later articulate that it was reasonable under the circumstances to believe that the closed container had in it a weapon or destroyable evidence, then the search-incident-to-arrest authority would allow a search of the container.  As a practical matter, at a typical arrest scene, and contrary to popular belief: there will be few instances where search-incident-to-arrest authority can be used to search a closed container such as a purse or backpack that has been separated from an arrestee.  

#3.  Other Areas Surrounding Arrest Scene: There is no recognized search-incident-to-arrest search authority for those areas beyond an arrestee’s person or the grab/immediate control area, such as other rooms of a house, or outbuildings near a public-arrest scene.          

But, should there be no authority arising from the arrest itself, sometimes an inventory search of a closed container taken into custody at an arrest scene may work.  Inventory searches are one “well-defined” exception to the search warrant requirement.  An inventory search is the search of property lawfully seized and detained, in order to ensure that it is harmless, to secure valuable items, and to protect against false claims of loss or damage. 

The justification for an inventory search does not rest upon probable cause or the need to search for evidence of a crime.  Rather, a warrantless inventory search is only reasonable under the Fourth Amendment because it is an administrative action that attempts to protect both government agencies from liability and the property of citizens entangled in the justice system. 

So, for an inventory search to be lawful, first a law enforcement agency must have lawful custody of the property to be inventoried.  Officers may impound the personal effects of an arrestee if such impoundment was reasonable under the circumstances.  A home arrest may be viewed differently than a public place arrest.  For example, at a house it would be more reasonable to allow the arrestee to leave their backpack at their home; but, an arrest in a grocery store would be different.  It would be unreasonable to leave the arrestee’s backpack in the frozen food isle “or expect someone at the store to take possession . . . not knowing what might be in it.”

The second requirement of a lawful inventory search is for the agency to have in place a standardized inventory policy.  The policy need not be written, but officers will have to testify in detail to what the policy is and how it operates.  The more discretion allowed by a policy, the more likely the policy will be held unreasonable and therefore unlawful.  Inventory searches are to be narrow in application, and each inventory search handled in the same manner.  Inventory searches are not to be used to further a criminal investigation. 

Written inventory policies are the best practice.  When an inventory search is contested at a suppression hearing, the prosecutor will be required to prove by a preponderance of the evidence that the searching law enforcement agency had a recognizable, standardized policy.  Written policies are much easier to prove than unwritten policies.  Constitutionally, if an agency has no inventory search policy, then its officers have no inventory search authority.  It is as simple as that. 

Should during a lawful inventory search evidence of a crime be found, then best practices would highly recommend that the officer stop the inventory search and immediately apply for a search warrant because the search has suddenly transformed from a routine administrative action into a new criminal investigation.

That all said, there may well be other legal reasons to search a particular container or area at an arrest scene such as probable cause/exigent circumstances, consent, plain view or protective sweep.  Unfortunately, discussion of those alternative and overlapping authorities must await another day.   

For further research and understanding: Chimel v. California, 395 U.S. 752 (1969); United States v. Robinson, 414 U.S. 218 (1973); State v. Copridge, 260 Kan. 19 (1996); State v. Baker, 306 Kan. 585 (2017); State v. Ritchey, 56 Kan.App.2d 530 (2018); United States v. Knapp, 917 F.3d 1161 (2019). 

A split Kansas Court of Appeals panel has, at least for now, changed Kansas law concerning the timeline for the calling of a drug dog at a traffic stop.  For decades we have all understood that based upon reasonable suspicion of a second crime occurring: an officer could continue to detain the car, call for the nearest drug K-9, and wait.  Yeah, well, so much for that last part.    

Sergio Arrizabalaga was stopped for a traffic violation on an evening in 2017.  The facts are not in dispute and the timeline is really what is important to understanding this case.  The facts and timeline are: 1) the officer had reasonable suspicion of a traffic violation to stop Sergio and to perform a traffic investigation; 2) during the stop and a conversation with Sergio, the officer developed (secondary) reasonable suspicion that a drug offense was occurring; 3) within 8 minutes, the officer had performed his traffic stop duties, gave Sergio a warning ticket, and released him from the traffic detention; 4) during the next 16 minutes the officer re-contacted Sergio, Sergio consented both to stay, to answer more questions, and, later, to a search of the vehicle; 5) after some questions but before the vehicle search began, Sergio revoked his consent to search; 6) still having (secondary) reasonable suspicion of a drug offense occurring, the officer re-detained Sergio and called for a drug dog; 7) the nearest K-9 took 24 minutes to arrive; 8) upon arrival, the dog alerted to the odor of controlled substances coming from the vehicle (PC to search), and a search found 111 pounds of marijuana.

The trial court later held two suppression hearings.  In the first, the trial judge found that the officer had developed reasonable suspicion of a drug crime occurring during the initial traffic stop investigation portion of the event.  In the second hearing, the trial judge found that even with such reasonable suspicion of a second crime, that nevertheless the officer had waited too long to call the dog, and therefore the overall stop had been unreasonably lengthened and had become unlawful.  The State appealed, arguing that despite when the officer might have called for a dog, reasonable suspicion of the then-occurring drug crime was all that was necessary to detain the vehicle until the closest drug dog was able to arrive.

In a 2-1 decision, the appeals panel agreed with the trial judge, holding that the officer should have called for the drug dog at the moment in time that the officer had developed reasonable suspicion of the drug crime; that the officer should not have waited until after he finished the traffic stop, after the consensual encounter questioning, after Sergio had consented to a search, and after Sergio had revoked his consent to search. 

Judge Gardner, the dissenting judge, said wait a minute……that is not the law.  Quoting the U.S. Supreme Court, Judge Gardner wrote, “In assessing whether a detention is too long in duration to be justified as an investigative stop, we consider it appropriate to examine whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant.  A court making this assessment should take care to consider whether the police are acting in a swiftly developing situation, and in such cases the court should not indulge in unrealistic second-guessing.  A creative judge engaged in post hoc evaluation of police conduct can almost always imagine some alternative means by which the objectives of the police might have been accomplished by ‘less intrusive’ means does not, by itself, render the search unreasonable.  The question is not simply whether some other alternative was available, but whether the police acted unreasonably in failing to recognize or to pursue it.”  It was Judge Gardner’s position that 1) judges and other legal experts continually argue at what point in time during an event that an officer might have developed reasonable suspicion.  And, it has never been the law that simply because an officer thinks he or she has reasonable suspicion that such a belief is binding upon the case or the courts; and, 2) the question is not what the officer didn’t do (call for the dog earlier).  The question should be whether or not what the officer did do was reasonable under the particular circumstances of this particular stop (ask more questions, seek consent to search, and only when all that did not work, then call for the nearest dog).  That great dissent, however, was unable to carry the day.

The prosecuting County Attorney’s Office intends to request review by the Kansas Supreme Court.  Such a review is discretionary with our Supreme Court.  Hopefully, they will take it and fix this.  In the meantime, officers should think about calling for a dog sooner than later.    

A divided panel of the Kansas Court of Appeals has upheld 2-1 a trial court that had earlier found that an officer had unreasonably used race in deciding to initiate an enforcement action.  

K.S.A. 22-4609 says: “It is unlawful to use racial or other biased-based policing in: (a) determining the existence of probable cause to take into custody or to arrest an individual; (b) constituting a reasonable and articulable suspicion that an offense has been or is being committed so as to justify the detention of an individual or the investigatory stop of a vehicle; or, (c) determining the existence of probable cause to conduct a search of an individual or a conveyance.” 

In 2017, an officer was sent to an apartment complex on a theft call.  No suspect information had been provided.  As the officer exited his car in the complex parking lot, the officer testified that he detected the odor of marijuana.  In a nearby SUV with its windows rolled down were two African-American men.  The officer called out to the men, “You guys call?’  “No, sir” was the response.  

The panel majority said: “Taking a step towards the apartment building, [the officer] turned back towards the SUV, and while walking about eight steps to the passenger door, asked, ‘Where you all from?’  He received a reply, ‘Not here.’  When the driver, later identified as Gill, started to drive away, [the officer] let Gill know that he was not free to leave and that he had to answer [the officer’s] questions: ‘Hold on.  I’m talking to you . . . Because I got called out to this area . . . I know you didn’t call me.  Put the vehicle in park.’  At this point, [the officer] began addressing Gill as ‘dude’ and although Gill had not committed a traffic violation and seemingly was lawfully parked, [the officer] demanded Gill’s driver’s license and proof of insurance ‘because I’m asking for it.’  Eventually, after about another 39 seconds and some 94 seconds after the encounter started, [the officer] stated that he could smell marijuana in the SUV.  [A backup officer] arrived five minutes later and [the first officer] told [the backup officer] why he walked over to the SUV – ‘I’m out here for a theft case.  I pull up in my vehicle and these two are staring at me hard and start looking back so I start walking over here.” 

A search of the SUV found 18 individually wrapped baggies of marijuana.  Upon being charged, Gill filed a suppression motion alleging race-based policing had been unreasonably used in the officer’s decision to initiate the enforcement.  At the suppression hearing, the trial judge found that 1) the officer had not approached the SUV because of the theft investigation; and, 2) the officer’s testimony concerning the point in time when he smelled marijuana was not credible because from where the officer’s patrol car was located, the odor of marijuana could have come from a different car parked closer to the officer or from the nearby apartment complex.  

Based on that trial court finding, the panel majority held that since neither the theft investigation nor the odor of marijuana were reasons for the enforcement action, then the reason must have been the officer’s statement,  “These two are staring at me hard.”  Supporting that belief was the officer having “contemptuously refer[red] to Gill as ‘dude.”    

The dissenting member of the panel said hold on a minute: “. . . I draw a completely different conclusion from the evidence as the district court did.  There is simply no evidence of racial animus . . . there is no evidence in the record on appeal establishing that ‘staring at him hard’ equates to a race-based decision to initiate law enforcement action.  There is no testimony that [the officer] approached the vehicle because its occupants were African-American, nor is there testimony that such a statement is jargon or code for a race-based foundation of the stop.  I view the words ‘staring at him hard’ in this context as possible evidence of a guilty mind on the part of Gill instead of racial animus.  Although the district court said that [the officer] should have investigated the apartment complex and another vehicle – which appears to have been unoccupied with closed windows – before investigating whether the smell of marijuana was emanating from Gill’s vehicle, this is not a requirement the Kansas Supreme Court has placed on officers . . . the district court and the majority seem to view these four words [staring at him hard] in isolation from [the officer’s] entire statement.  [The officer] stated, ’I’m out here for a theft case.  And I pull up in the vehicle.  These two are staring at me hard and then start looking back so I start walking over here – I smell the odor of marijuana.’  And the back up officer, who was approximately 8 to 10 feet away from Gill’s vehicle, replied, ‘Jesus, I can smell it from here.”  

The dissenting judge was not done: “[a]nd no reasonable person could construe [the officer’s] use of the term “dude” when addressing Gill as racially insensitive . . the majority’s suggestion that [the officer] may have been motivated by his ‘implicit bias’ is also completely unsupported by the record.”  

As of this writing, the State has not requested review by the Kansas Supreme Court.  

What really makes this case extra hard for the State was the trial court’s officer credibility finding.  When the marijuana odor was removed from the equation, the argument became very difficult. 

That all said, here is another point in the case worth mentioning: a court can suppress evidence for violation of K.S.A. 22-4609 even when the violation does not involve the Exclusionary Rule and the Fourth Amendment (search and seizure).  The Kansas Supreme Court held in an earlier case that K.S.A. 22-3216(1) can be used to suppress evidence in a biased-based policing matter.  Remember that in this case the argument was not a search and seizure violation, rather it was a violation of the biased-based policing statute – the unreasonable initiation of enforcement.

 

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 State v. Palacio; No. 116,899

Macio Palacio Jr. was involved in a disturbance where he fired shots at the wrong vehicle and an innocent female passenger was killed.  Palacio was arrested and interviewed at the station.  Because Palacio was in arrest custody, and was being asked questions concerning the criminal event, the interviewing officers Mirandized him.  He agreed to speak to them.  One of the interviewers told Palacio that he knew Palacio was at the shooting and that Palacio’s gun had been used.  Another interviewer said, “I think about some poor girl’s parents.”  In response, Palacio said, “[h]onestly, I just want to talk to my attorney.”

The trial judge later found: “[A]fter defendant asked to speak to an attorney, [the Sergeant] proceeded to advise the defendant of the offenses he and his girlfriend were being charged with.  The officers then asked the defendant if he had any felony convictions or drug charges.  After the defendant answered these questions, the officers stood up to leave and stated they would get the paperwork prepared.  The defendant then stated he wanted to speak further to the officers and asked them to sit down.  After [the Sergeant] inquired as to whether the defendant wished to speak to them without an attorney, the interrogation continued.”

After restarting the interview, Palacio admitted to being the shooter.  After being charged, he requested that the trial court suppress all of his statements made after he asked to speak to his attorney.  Following a hearing, the trial judge suppressed only the statements made by Palacio between the time that he asked to speak to an attorney and when he told officers that he wanted to speak further with the officers.  Palacio was convicted and appealed saying that the statements of the officers, and the questions that they asked immediately after Palacio had invoked his right to counsel, were interrogative and thus a constitutional violation.  In essence, Palacio argued that the interrogation never ended.

The Kansas Supreme Court first noted that “once the right to have counsel present during interrogation has been invoked, the courts impose a relatively rigid requirement that interrogation must cease.  The interrogation can continue only after a lawyer has been made available or the suspect reinitiates the interrogation . . . Although Palacio asked the officers to sit down and told them he wanted to talk without a lawyer present after he listened to those statements and answered the questions, his comments would not qualify as reinitiation if they occurred after interrogation.  A valid waiver of a previously asserted right cannot be established by showing only that the suspect responded to further police-initiated custodial interrogation, even if the suspect has been advised of his rights.”

Interrogation is “express questioning” or “any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.  The Supreme Court then held that “express questioning is not per se interrogation.  Rather, it is subject to the same test as an officer’s other conduct.  An officer’s words or actions, including explicit questioning, is interrogation only if the officer should have known that the questioning was reasonably likely to elicit an incriminating response from the suspect.”

The comments and questions in Palacio’s case were either declarative statements meant to inform Palacio of the reasons he and his girlfriend were in custody, or they were questions that did not otherwise concern Palacio’s involvement in or knowledge of the crimes the officers were investigating.  The officers were not offering any information for Palacio to consider or pressuring him to change his mind [about speaking to an attorney].  The officers did not violate Palacio’s Fifth Amendment rights.

As for asking for the interview to continue, the Supreme Court agreed with the trial court that Palacio knowingly and intelligently waived his previously invoked right, and that his statements, “showed a desire . . . to re-engage in dialogue with law enforcement about the investigation.”

Then, the Supreme Court took up the issue of whether Palacio’s confession as the shooter was voluntarily given.  To decide that question, Kansas courts look at the following factors: 1) the accused’s mental state; 2) the duration and manner of interrogation; 3) the ability of the accuse on request to communicate with the outside world; 4) the accused’s age, intellect, and background; 5) the fairness of the officers in conducting the interrogation; and, 6) the accused’s fluency with the English language.  Palacio argued only the fifth factor: that the officers conducted the interrogation unfairly.

The Supreme Court again agreed with the trial judge who had earlier found based upon the recorded interview that “the officers spoke to the defendant in a polite and conversational tone . . . The officers did not at any time threaten, coerce, or engage in deceptive practices during the interview.  No promises were made . . . the defendant was treated fairly by the officers . . .”

The Supreme Court did note that Palacio also complained that the interviewing officer’s statement “I think about some poor girl’s parents” was coercive.  But, “[p]olice appeals to the defendant’s sympathies, such as the now-famous ‘Christian burial speech’ ploy, ‘do not automatically render a confession involuntary.  Rather, “[t]heir use must instead be considered in conjunction with the rest of the circumstances.”  Because none of the other factors in the test for voluntariness suggested coercion, that single statement, even if it was coercive, failed to render the confession involuntary.

Since 2016 the Kansas Legislature has been reviewing our state’s law enforcement policies concerning civil asset forfeiture.  On the recommendation of a 2017 Kansas Judicial Council subcommittee report, amendments were made in 2018 to the state forfeiture act.  And, those changes will probably not be the final word.  The Legislature will take some time to gather additional information and then again review the reform activists’ arguments.  In a nutshell, the complaints tend to be: 1) a law enforcement tool that removes property from criminal use and benefit is bad public policy; 2) forfeiture of property should first require a criminal conviction of those involved; 3) law enforcement should not receive the proceeds of asset forfeiture; and,4) Kansas law does not provide sufficient due process to property owners and possessors before forfeiting property.

Holding Seized and Forfeited Monies: One important 2018 change concerned how Kansas law enforcement agencies are to hold and process seized, and later forfeited, monies.  With those requirements in mind, administrators should immediately put into place procedures that prevent the commingling of the different kinds and sources of funds.  Agencies should now have the following separated funds: 1) a holding fund for seized monies that are pending state court forfeiture; 2) a law enforcement trust fund for monies forfeited by a state court and to be used in the future by that law enforcement agency; 3) a fund to hold and use federal court forfeited funds that have been shared with the Kansas agency through the federal equitable sharing program; and, 4) a fund to hold and expend state drug tax sharing funds from the Kansas Department of Revenue.  There should be no private bank accounts because all forfeited monies are to be received, held, budgeted, and expended through the same process regulating other public funds.  Lastly, all interest earned by forfeiture and drug tax accounts should be returned to those accounts and should not be sent to the general fund. 

Spending Forfeited Monies: The second change important to administrators, also effective on July 1, 2018, was some better guidance on how to lawfully expend monies forfeited in state court proceedings.  For many years it has been both national and Kansas policy to send the proceeds of civil forfeiture to the law enforcement agencies that provided the investigative and litigation resources necessary to enforce the forfeiture laws.  In Kansas, those forfeited funds were to then be expended by the law enforcement agencies for “special, additional law enforcement purposes.”  In essence, the general policy redirected criminal property to a more lawful use while at the same time provided additional non-tax funding to law enforcement agencies.  With the 2018 amendments, and thanks directly to retired Chief Ed Klumpp, Kansas agencies now have much better guidance about what the phrase “special, additional law enforcement purpose” means.  Inspired by federal equitable sharing use rules, an amendment to K.S.A. 60-4117(e) now lists twelve general guidelines of proper expenditures, including things like law enforcement equipment, training, travel, and sharing between agencies.     

Reporting Seized and Forfeited Property: Prior to 2019, law enforcement agencies were only required to annually report forfeiture receipts and expenditures to their respective governing bodies.  That requirement has been repealed and two new reporting requirements will become effective July 1, 2019. 

First, all Kansas law enforcement agencies that seize property for civil forfeiture will be required, upon final disposition of the forfeiture case, to report that information to a new on-line state forfeiture repository operated by the KBI.  Law enforcement agency administrators will need to begin reporting all cases that have a final disposition occurring on and after July 1, 2019, even if the original seizure of the property occurred prior to July 1, 2019. 

Second, and on an annual basis, all Kansas law enforcement agencies (whether they have seized property for civil forfeiture or not), will be required to report monies and property forfeited, held, and expended during the previous calendar year.  Even if none, an annual report has to be filed.  The first annual report will be due in 2020 and will cover the six-month period July 1-December 31, 2019.    

KBI is currently completing work on the new reporting program’s rules, regulations, and online website.  KBI is committed to assisting agency administrators in complying with the new requirements, and KBI personnel are currently on the road doing training sessions to fulfill that goal.  Questions about the repository, online access, and new reporting requirements should be directed to:

Jessica Crowder, Program Consultant II
785-296-8338
Jessica.Crowder@kbi.ks.gov

Mitch Beemer, IBR Unit Manager
785-296-8279
Mitch.Beemer@kbi.ks.gov

The 8th Amendment to the United States Constitution provides that “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”   The “excessive fines” clause of that Amendment protects against “grossly disproportional” fines.  Think small crime, huge fine.  In 1993, the U.S. Supreme Court held that civil asset forfeiture cases brought by the federal government were quasi-punitive and were therefore subject to the 8th Amendment’s excessive fines clause.  Since then, when a federal court forfeits property gained or used in crime, that decision is subject to a “gross disproportionality” review.  Think small federal crime, huge federal forfeiture of property.  Thus, the 8th Amendment requires a balancing of community and individual interests. 

Tyson Timbs was convicted on state theft and controlled substances charges.  At his arrest, Indiana authorities seized his $42,000 Land Rover that had been purchased with his late father’s life insurance proceeds.  The State of Indiana alleged that the Land Rover had facilitated  [had made easier] committing the crimes.  Property that facilitates crime is forfeitable both federally and in almost all states including Kansas.   

The Indiana trial judge agreed that the Land Rover had facilitated Tyson’s crimes and that it was therefore forfeitable.  However, the judge further held that because the value of the Land Rover was greater than the maximum $10,000.00 fine that could have been imposed in the parallel criminal case against Tyson, it would be unconstitutional under the 8th Amendment to forfeit the Land Rover in the civil forfeiture case.  The Court of Appeals of Indiana agreed.  But, the Indiana Supreme Court did not.  The Indiana justices held that the 8th Amendment’s excessive fines clause has never applied to the states, and that the trial judge erred by looking to that clause.  Tyson appealed to the U.S. Supreme Court.

The Big Court agreed with Tyson that the excessive fines clause should apply to the states, and reversed the Indiana Supreme Court.  “When ratified in 1791, the Bill of Rights applied only to the Federal Government.  The Constitutional Amendments adopted in the aftermath of the Civil War, however, fundamentally altered our country’s federal system.”  Over the years, the Court has made applicable to the states through the 14th Amendment most of the rights contained in the first ten Amendments known as the Bill of Rights.  In short, the right against excessive fines in federal courts is now a right in state courts.

The Big Court sent the case back to Indiana for it to determine if the forfeiture of a $42,000 Land Rover is grossly disproportional to the societal damage caused by the Land Rover when it made the serious crimes easier and more efficient to commit.

That said, the Timbs case will have little practical impact in Kansas civil forfeiture cases because Kansas has already codified into our state law those same excessive fines protections.  In 1993, the Big Court had just held in Austin v. United States that the excessive fines clause applied in federal civil forfeitures.  Because Kansas was at that same time reforming its civil asset forfeiture laws, our Legislature included in the 1994 state forfeiture reform act an excessive fines protection procedure.  See K.S.A. 60-4106(c).

The Kansas Supreme Court has finally given us some guidance for when officers detect the odor of marijuana coming from a residence.  The issue has been muddy for years. 

During an arrest warrant investigation, officers contacted Lawrence Hubbard at his apartment.  When Hubbard opened the door and stepped outside, officers detected the “strong odor of raw marijuana emanating from the apartment.”  Through open window blinds, officers noticed five to seven people in the apartment.  When Hubbard again opened the door to re-enter the apartment, the odor was again present.  Hubbard closed the open window blinds.  Officers decided to seek a search warrant and ordered everyone in the apartment to leave.  No one was searched as they left, but officers noted that they did not smell marijuana on anyone as they departed.

Officers then secured the apartment awaiting a search warrant.  As a part of that security effort, a physical sweep of the apartment was done to make sure that no one else was present, and the sweep was confined to only those places where a person could hide.  During the sweep, officers saw drug paraphernalia in plain view.  A search warrant was obtained and during its execution, officers found a small amount of marijuana and seized the earlier-noticed paraphernalia.  Hubbard was charged with misdemeanor possession.  He asked the trial judge to suppress the evidence arguing: 1) the odor of marijuana coming from a private residence, standing alone, does not amount to probable cause; 2) the protective sweep was unnecessary and therefore illegal; and, 3) when officers testify about recognizing the odor of marijuana, they should have to qualify as experts and not just testify based upon their training and experience.  After a hearing, the trial judge said no.  The Kansas Court of Appeals later said no.  Last week, a divided Supreme Court (4-3) also said no.    

MJ Odor and Probable Cause: “Probable cause can be established if the totality of the circumstances indicates there is a fair probability that the place to be searched contains contraband or evidence of a crime.”  In odor cases, those circumstances include, but are not limited to: 1) proximity to the odor’s source; 2) reported strength of the odor; 3) experience identifying the odor; 4) elimination of other possible sources of the odor; and, 5) the number of witnesses testifying to the odor’s presence. 

But, importantly, the Court warned us, “[t]his is ultimately a case-by-case determination based on the circumstances.  Not all cases relying on odor will have the same result.”  So, remember that houses are just different and probable cause for a house warrant will assuredly receive a more critical review.

Protective Sweep/Exigent Circumstances: A “protective sweep” of a house or other building is a Fourth Amendment search, and it requires consent, a search warrant, or a recognized exception to the warrant rule.  There are two kinds of protective sweep exceptions, and both are based in part upon “exigent circumstances.” 

The first is for officer safety: a protective sweep is proper during an arrest when it is reasonable to believe that there may be other persons present who could be an immediate danger to the officers.   

The second is when officers reasonably believe that before a search warrant can be obtained evidence will be destroyed or concealed.  Hubbard’s situation involved this second type of sweep. 

Courts analyze the existence of exigent circumstances by looking at the following factors: 1) the time needed to secure a search warrant; 2) the reasonableness of the officers’ belief the evidence may be immediately lost; 3) potential danger to the officers guarding the site while awaiting a search warrant; 4) whether those persons with possession of the evidence are aware of the officers’ presence; and, 5) the ease with which the evidence might be destroyed or hidden. 

Here, the Court agreed that because there was probable cause to believe marijuana was in the apartment and because marijuana is easily disposed of, officers properly swept the apartment for other unknown persons who could have destroyed or hidden the evidence.  Also, because the officers were performing a proper sweep, their legal presence in the apartment allowed them to legally see in plain view the drug paraphernalia, and to later note that in the search warrant affidavit.  

Officer Testimony About Odor: This was really the main disagreement between the justices.  The question was: when an officer testifies that based upon his or her training and experience the odor the officer detected was marijuana: is that statement a fact or an opinion?  And, if its an opinion, is it a lay opinion or an expert opinion?

Generally, a lay witness’s opinion should not be based upon scientific, technical or other specialized knowledge.  Here, the Court’s majority held that “in this instance we are confident it is within the realm of common human experience to smell something and subsequently be able to recognize that same odor again, e.g. alcohol, gasoline, freshly baked bread, recently cut grass, and so on.” 

So, the Court found that an officer’s odor-identification testimony is an opinion but it is a lay opinion.  And, for these purposes, that is sufficient. 

Colin