State v. Parry, 113130

Background

Police responded to a report of a marijuana odor at Dominic Parry’s apartment; officers smelled marijuana at the door, occupants denied consent to a search, and officers later conducted a warrantless search that recovered marijuana and paraphernalia.
Parry moved to suppress; the district court granted suppression, and the Court of Appeals affirmed that ruling in an interlocutory appeal (Parry I).
Four days after the appellate decision, the State dismissed the first prosecution without prejudice and refiled identical charges against Parry.
In the second prosecution Parry again moved to suppress; the State asserted new justifications (exigent circumstances and inevitable discovery) that it had not raised in Parry I. The district court granted suppression a second time.
The Court of Appeals sua sponte asked for supplemental briefing on the law of the case doctrine, then affirmed the second suppression order on that doctrine’s basis (Parry II); a dissent questioned the panel’s authority to raise the doctrine sua sponte.
The Kansas Supreme Court granted review to decide (1) whether the Court of Appeals properly raised the law of the case sua sponte, and (2) whether the doctrine barred relitigation of the suppression issue; the Supreme Court affirmed the Court of Appeals.

Issues

Issue	State's Argument	Parry's Argument	Held
May an appellate panel raise the law-of-the-case doctrine sua sponte when the issue is purely legal and the facts are undisputed?	Panel lacked authority; issue was unpreserved and jurisdictional error.	Panel may raise dispositive legal questions on undisputed facts; parties had full briefing.	Yes—court has discretion to address such unpreserved legal issues; panel did not abuse discretion.
Does the law-of-the-case doctrine bar the State from re-arguing admissibility after dismissing and refiling identical charges following an adverse appellate ruling?	Dismiss-and-refile is permitted; new prosecution is technically a new case so new arguments allowed.	Refiling to relitigate a decided issue is a successive stage of the same prosecution; doctrine bars relitigation.	Yes—refiling here was a subterfuge to obtain a do-over; law of the case prevents relitigation and suppression order stands.
Was the suppression question finally determinative such that review of an unpreserved doctrine was appropriate?	Not directly raised below; should not be considered.	The legal question was dispositive and based on undisputed facts.	Yes—the question was purely legal, dispositive, and parties fully briefed it, so review was appropriate.
Must the court reach the merits of the State’s new Fourth Amendment exceptions (exigent circumstances/inevitable discovery)?	These new arguments should be considered on the merits.	No—law of the case bars relitigation, so merits not reached.	Court did not reach merits; law of the case precluded reconsideration.

Key Cases Cited

Thoroughbred Assocs. v. Kansas City Royalty Co., 297 Kan. 1193 (2013) (describing law of the case prevents relitigation of issues decided within successive stages of the same proceeding)
Pierce v. Board of County Commissioners, 200 Kan. 74 (1967) (exception allowing appellate review of unpreserved issues that are purely legal on admitted facts and finally determinative)
State v. Collier, 263 Kan. 629 (1998) (application of law of the case and mandate rule in criminal appeals)
Coolidge v. New Hampshire, 403 U.S. 443 (1971) (warrantless entry into a dwelling is presumptively unreasonable under the Fourth Amendment)
State v. Kleypas, 305 Kan. 224 (2016) (prior appellate decision is settled law of the case on issues involved in that appeal)