Volume 6 No. 3 March 2003

Written by
Steven R. Zinn, Deputy Appellate Defender

The Caselaw Update summarizes recently published Kansas cases on criminal law. The present Update includes cases decided during March, 2003. A case is summarized if it develops a new principle of law or applies an established principle to a novel set of facts. The complete text of published opinions can be located at www.kscourts.org. It should be noted that, under Supreme Court Rule 8.03(i), if a petition for review is filed from a Court of Appeals opinion, the opinion cannot be cited as precedent until the petition for review is denied and the mandate has been issued.

In State v. Boyd, 275 Kan. 271, 64 P.3d 419 (2003), defendant Tracy Boyd was a passenger in a car that was stopped for a traffic violation. Because the vehicle had been parked in front of a house which was under surveillance, and because the driver was particularly nervous, the police asked the driver to get out of the car. The driver consented to a search of his person, and no illegal substances were found on him. He then consented to a search of his car. When he did so, the police ordered Ms. Boyd to get out of the car. As she started to get out, she reached for her purse but was told by one of the officers to leave it in the car. She put the purse down and stepped out of the car. An officer asked if the purse was hers and if he could search it. She said that her purse was a personal belonging and that she did not want to officer to search it. Meanwhile, a crack pipe was found during the search of the car to which the driver had consented. The officers then proceeded to search Boyd’s purse and found crack cocaine.

The district court’s denial of Boyd’s motion to suppress was upheld by the Court of Appeals, but that ruling was reversed by the Supreme Court. The lower courts based their rulings on Wyoming v. Houghton, 526 U.S. 295 (1999), in which the United States Supreme Court held that officers were justified in searching a purse which had been left in the backseat of a car which was subject to a search based on probable cause. The Kansas Supreme Court, however, found Houghton to be factually distinguishable. In Houghton, the officers had probable cause to believe drugs would be found in the vehicle before they entered it, and the purse which was searched was voluntarily left on the seat when the passengers got out. Conversely, in this case, Boyd attempted to take her purse with her, and refused to consent to a search the purse, before the officers found the crack pipe and thereby had probable cause to search the vehicle. The Court found at the time Boyd was told to get out of the car, the officers did not have probable cause to search her or her purse. As a result, the officers had no right to order her to leave her purse in the car, and their subsequent search of the purse as a part of the search of the car violated the Fourth Amendment.

II. Warrantless Search of Licensed Drinking Establishment

In State v. Childs, 275 Kan. 338, 64 P.3d 389 (2003), the Supreme Court found the trial court had erred in failing to suppress evidence seized from a McPherson drinking establishment during a warrantless search for after-hours drinking. The search was conducted pursuant to the provisions of the Club and Drinking Establishment Act, K.S.A. 41-2601 et seq. Police arrived at the bar at 2:30 a.m. They knocked on the back door and announced that they were police officers. Defendant Mark Childs, the manager of the bar, opened the door but blocked the entrance with his body. The officers said they were conducting a bar check and told Childs to move out of the way or he would be arrested for obstruction. Childs moved aside and also unlocked the front door when an officer told him to do so. An ensuing search of the bar disclosed methamphetamine and drug paraphernalia.

K.S.A. 41-2613 provides that the acceptance of a license to sell alcoholic liquor "shall conclusively be deemed to be the consent of the applicant and licensee or permit holder to such immediate entry and inspection ... Refusal of such entry shall be grounds for revocation of the license or temporary permit." The Supreme Court found that because the legislature had identified license revocation as the sanction for refusing to permit officers to enter and inspect the premises, it had "acknowledged the licensee’s right to refuse to submit to entry and inspection by law enforcement officers." Because license revocation is the exclusive sanction for refusing entry, the officers did not have authority to arrest Childs for obstruction of official duty and their conduct in overcoming Childs’ resistance by threatening to arrest him "amounted to gaining entry on false pretenses." As a result, the warrantless entry and search of the bar were unlawful.

III. Dismissal Based on Delay in Serving Arrest Warrant

In State v. Dozal, 31 Kan. App.2d ___, 65 P.3d 217 (2003), the Court of Appeals found that the charges against defendant Javier Dozal should have been dismissed due to an 84 day delay in serving an arrest warrant on him. Dozal was charged with two counts of sale of cocaine which allegedly occurred on July 21, 1998 and August 4, 1988. The charges initially were dismissed but were then refiled on July 20, 2000. An arrest warrant was issued for Dozal that same day. The sheriff’s department sent a letter to Dozal by first class mail, asking him to turn himself in, but no effort was made to actually serve the warrant on him until October 12, 2000.

Under K.S.A. 21-3106(10), "[n]o prosecution shall be deemed to have been commenced if the warrant so issued is not executed without unreasonable delay." The Court of Appeals found the 84 day delay in this case to have been unreasonable. During this time, Dozal continued to reside at the same residence where the drug offenses allegedly had occurred and remained employed at the same place he had been working before the warrant was issued. The Court of Appeals found that mailing a request to Dozal to turn himself in did not constitute a bona fide effort to serve the warrant. The Court also stated it had found no authority which "has held that prejudice is a factor to consider when determining whether a delay is unreasonable." Because the delay was unreasonable, the case was not commenced within the applicable two year statute of limitations.

IV. Guilty Plea Set Aside Where Court Misstated Possible Maximum Sentence

In State v. Williams, 275 Kan. 284, 64 P.3d 353 (2003), defendant Donnell Williams pled guilty to two counts of first degree murder. He was 14 years old at the time of the offense at 16 years old at the time he entered his plea. He moved to withdraw the plea before sentencing but that motion was denied. On appeal, he asserted for the first timer that he should be allowed to withdraw his plea because the district court had incorrectly stated the maximum penalty Williams faced on the first degree murder counts. The district court had informed Williams that "the maximum possible punishment could be anywhere up to 25 years in prison with no parole." In fact, the maximum possible sentence, and the sentence ultimately imposed, was life imprisonment with no possibility of parole for 25 years. The Supreme Court held that in light of this misstatement regarding the maximum sentence, the interests of justice required that Williams be allowed to withdraw his plea.

V. Mere Passage Through a School Zone in an Automobile Does Not Establish Possession Within 1000 Feet of a School

In State v. Barnes and Boylan, 275 Kan. 364, 64 P.3d 405 (2003), the Supreme Court affirmed the district court’s finding that defendants Gary Barnes and Karla Boylan could not be convicted of possession of methamphetamine within 1000 feet of a school where they had merely driven through a school zone with drugs in their possession. A Junction City police officer was conducting surveillance on a suspected drug house when he saw the defendants pull into an alley behind the house. The officer observed the occupants engage in what he considered to be suspicious behavior, then drive off. The officer followed the car for three to five minutes. He described the route the vehicle had taken and indicated that it had driven past Franklin School. This occurred at about 11:45 p.m. The car stopped and pulled into the parking lot of a Wendy’s restaurant when the police activated their lights. This location was not within 1000 feet of a school. In affirming the trial court’s finding that the enhanced sentencing provisions for drug offenses within 1000 feet of a school did not apply in this case, the Supreme Court stated: "We do not believe the Kansas Legislature intended the schoolyard statute to apply to an individual not apprehended within the school zone and where uninterrupted passage in an automobile through the school zone was fortuitous."

In State v. Stewart, 31 Kan. App.2d ___, 65 P.3d 555 (2003), the Court of Appeals reversed defendant Dermon Stewart’s conviction for obstruction of legal process. Stewart, who was on probation, visited a court services officer (CSO), to whom he acknowledged he had violated his probation. The CSO sought and obtained an arrest warrant and told Stewart he needed to accompany her to the warrants office, which he did. However, when Stewart was informed of the amount of his bond, he said he could not afford it and attempted to leave the office but was subdued before he could do so. Stewart was charged with obstruction of legal process, in violation of K.S.A. 21-3808. The Court of Appeals noted that the offense of obstruction of legal process or official duty can be applied to two different situations, one in which a person is obstructed in service or execution of process or a court order, and the other when an officer is obstructed in the discharge of any official duty. The Court stated that "[a] conviction based on one scenario cannot stand if the defendant’s actions actually fit the other scenario." Here, service of the arrest warrant was complete when Stewart accompanied the CSO to the warrants office. As a result, his conduct once inside the warrants office did not constitute obstruction of legal process. Accordingly, the evidence was insufficient to support Stewart’s conviction for the charge which had been brought against him.

In State v. Layton, 31 Kan. App.2d ___, 65 P.3d 551 (2003), the defendant argued the trial court had erred in imposing a felony sentence for the unlawful manufacture of methamphetamine pursuant to K.S.A. 2001 Supp. 65-4159. He claimed that under K.S.A. 2001 Supp. 65-4127c, the offense is a class A misdemeanor. That statute provides that any person who violates any of the provisions of the uniformed controlled substance act, other than specific offenses listed therein, shall be guilty of a class A misdemeanor. While recognizing that there was "some basis" for the defendant’s argument, the Court of Appeals applied the rule that when there is a conflict between a specific and a general statute, the specific statute controls. The Court held that the plain language of K.S.A. 65-4161 demonstrates that it was the intent of the legislature that the offense defined therein constitutes a felony.

VIII. Criminal History

In State v. Perez-Moran, 31 Kan. App.2d 328, 64 P.3d 463 (2003), the Court of Appeals held that while the offense of battery against a law enforcement committed against a state correctional officer or employee by a person in custody of the Secretary of Corrections, in violation of K.S.A. 2002 Supp. 21-3413, requires proof of the in-custody status of the defendant, it doers not require proof of the conviction that placed him or her in custody. Thus, use of the in-custody conviction to compute the defendant's criminal history score does not violate K.S.A. 21-4710(d)(11).

IX. Probation Revocation Following Graduation From Labette Improper

In State v. Garcia, 31 Kan. App.2d 38, 64 P.3d 465 (2003), defendant Carlos Garcia was sent to the Labette Correctional Conservation Camp after he violated the conditions of his probation. The district court stated that if Garcia "successfully completes" the Labette program, he would again be placed on probation. Garcia went to Labette and graduated from that program. When he returned to the district court, however, Judge Kennedy found that Garcia was "nurse-maided" through Labette and had not successfully completed the program. As a result, his probation was revoked and he was ordered to serve his prison term. That ruling was reversed by the Court of Appeals. The Court stated that "a probationer complies with a probation condition requiring him or her to enter and successfully complete Labette by graduating from that program." The Court also stated that the district court did not have the authority to substitute its assessment of what constitutes "successful completion" for that of the Secretary of Corrections.

In State v. Maass, 275 Kan. 338, 64 P.3d 389 (2003), the Supreme Court found that the provisions of K.S.A. 2001 Supp. 21-2511, which require anyone convicted of specified felonies to submit blood and Saliva samples to the KBI do not constitute a penalty but instead "are intended to assist law enforcement agencies in the identification and detection of crimes and offenders." The Court further held that the statutory requirements are not unconstitutional as an unreasonable infringement on the defendant’s right to privacy, stating that "the minimally intrusive nature of providing blood and saliva samples is significantly outweighed by the State’s interest in establishing and maintaining a statewide automated DNA database to search, match, and store DNA records."