State v. Parry, 358 P.3d 101

Background

Police responded to a neighbor's complaint of a strong smell of marijuana and entered Dominic Parry’s apartment after interacting with Parry and his girlfriend; officers found marijuana and paraphernalia.
Parry was charged in Clay County No. 13CR2 with felony marijuana possession (repeat offender) and misdemeanor possession of drug paraphernalia.
Parry moved to suppress the evidence, arguing no warrant and any consent was coerced; the State argued voluntary consent and did not assert exigent circumstances or inevitable discovery at that hearing.
The district court granted the suppression motion; the State filed an interlocutory appeal and this court affirmed the suppression in an unpublished opinion (Parry I).
Four days after Parry I, the State dismissed the charges without prejudice and immediately refiled identical charges in a new case (No. 14CR35); the State then argued exigent circumstances and inevitable discovery in a second suppression hearing.
The district court again granted suppression; on appeal this panel held the law-of-the-case doctrine barred the State from relitigating the constitutionality of the search and affirmed the suppression without addressing the merits of exigent-circumstances or inevitable-discovery theories.

Issues

Issue	State's Argument	Parry's Argument	Held
Whether the State may relitigate the constitutionality of the apartment search after dismissing and refiling identical charges following an adverse appellate ruling	The refiling created a new case; Parry I decided only consent, so State may now argue exigent circumstances and inevitable discovery	The refiling is a strategic attempt to get a second bite; the appellate ruling in Parry I forecloses relitigation of the Fourth Amendment issue	Law of the case applies; State cannot relitigate the search’s constitutionality in the refiled prosecution — suppression affirmed
Whether any exception (clear error or manifest injustice) justified departing from law of the case	There was no new law, newly discovered facts, or manifest injustice; previous ruling was not clearly erroneous	Same; State had full opportunity in original proceeding to raise other theories	No exception applies; doctrine bars additional briefing or relitigation
Whether dismissal without prejudice and refiling converts the matter into a distinct proceeding for law-of-the-case purposes	Dismissal without prejudice makes it a new case, so prior appellate holding doesn’t bind	Refiled prosecution is practically the same proceeding and was done to evade the appellate decision	Treated as a single proceeding for law-of-the-case purposes given the timing and identical charges
Whether appellate court may raise law of the case sua sponte on appeal	The State argued the issue wasn’t preserved; the majority found it appropriate to consider law of the case given the record and invited supplemental briefing	Parry supported applying law of the case; district court had already suppressed evidence	Appellate court may raise and apply law of the case where parties have opportunity to brief it; merits were resolved accordingly

Key Cases Cited

Dumler v. Kansas Dept. of Revenue, 302 Kan. 420 (Kan. 2015) (appellate review of legal questions is unlimited)
State v. Collier, 263 Kan. 629 (Kan. 1997) (law of the case prevents relitigation of issues decided on appeal unless clearly erroneous or manifest injustice)
Thoroughbred Associates v. Kansas City Royalty Co., 297 Kan. 1193 (Kan. 2013) (law of the case prevents relitigation within successive stages of same suit)
State v. Cuezze, Houston & Faltico, 225 Kan. 274 (Kan. 1979) (successive filings treated as single action for speedy-trial computation where refiling was a subterfuge)
State v. Goss, 245 Kan. 189 (Kan. 1989) (tacking time across successive cases when State dismisses and refiles to evade speedy-trial rules)
State v. Heigele, 14 Kan. App. 2d 286 (Kan. Ct. App. 1990) (refiling after dismissal and effect on preclusion doctrines; distinguished by majority)
State v. Randall, 257 Kan. 482 (Kan. 1995) (remand unnecessary where appellate determination disposes of issue)