Lead Opinion
The doctrine of law of the case prevents a party from serially litigating an issue already presented and decided on appeal in the same proceeding. The doctrine promotes judicial efficiency while allowing litigants a full and fair opportunity to present their arguments on a point—the first bite of tire proverbial apple. We apply law of the case to affirm the Clay County District Court’s ruling suppressing evidence the State intended to use to
The underlying facts related to the criminal charge are less important to our decision than the procedural history of the prosecution. We outline what is necessary to place the issue and our ruling in context.
Police officers went to an apartment building in Clay Center where Parry and his girlfriend lived with their 2-year-old son. A neighbor of Parry’s had reported a strong smell of burning marijuana in the building. The officers concluded the smell originated in Parry’s residence, so they knocked on the door. Parry and his girlfriend stepped across the threshold to speak with the officers. The woman admitted she had been smoking marijuana earlier in the day during a birthday celebration. The officers requested permission to look in the apartment. What happened next goes to the grounds for the motion to suppress and entails conflicting accounts about consent to search, so we skip ahead. The officers went inside and found marijuana and related drug paraphernalia.
The State charged Parry in Clay County No. 13CR2 with felony possession of marijuana as a repeat offender, a violation of K.S.A. 2014 Supp. 21-5706(b)(3), and with possession of drug paraphernalia, a misdemeanor violation of K.S.A. 2014 Supp. 21-5709(b)(2). Parry filed a motion to suppress the marijuana and paraphernalia on the grounds the police officers had no search warrant and any consent had been improperly coerced. The State countered that consent had been freely and voluntarily given, so the search did not violate the Fourth Amendment to the United States Constitution. The State made no alternative arguments for the validity of the search or the admissibility of the marijuana and paraphernalia. The district court held an evidentiary hearing, found any consent to have been involuntary, and granted the motion to suppress. The
Four days after the release of the panel decision in Parry I, the State dismissed No. 13CR2 against Parry without prejudice and immediately charged him in Clay County No. 14CR35 with the same offenses. As a practical matter, the complaints in the two cases differ only in their district court identification numbers.
Not surprisingly, Parry filed a motion to suppress in No. 14CR35. The district court held another evidentiary hearing. This time the State argued the search of Parry’s apartment was proper because exigent circumstances excused the need for a search warrant and even if the search were constitutionally improper, the marijuana and paraphernalia would have been inevitably discovered. The district court found those arguments unpersuasive and again granted Parry’s motion to suppress. And the State has again appealed. So here we are.
In their initial briefing, the parties did not address the law of the case doctrine. We issued an order requesting supplemental briefing, and both sides duly responded.
As indicated, we find law of the case applies, and its application precludes the State from again litigating the constitutionality of tire search of Pany’s apartment in the renewed prosecution. We, therefore, affirm the ruling of the district court without reaching the merits of the State’s position with respect to exigent circumstances and inevitable discoveiy.
The facts and procedural history relevant to law of tire case are undisputed. Our consideration of the doctrine presents a legal question, affording us unlimited review. See Dumler v. Kansas Dept. of Revenue, 302 Kan. 420, 425, 354 P.3d 519, (2015). Under the circumstances, a remand for the district court to consider a point of law would be both unnecessary and wasteful of judicial resources. See State v. Randall, 257 Kan. 482, 486, 894 P.2d 196 (1995); State v. Jones, 24 Kan. App. 2d 669, 675-76, 951 P.2d 1302 (1998).
The doctrine should apply here even though, technically, this case is not the same case as Tarry I. The distinction between the two rests on the slenderest of technicalities. The charges against Parry are the same. The dismissal of the original case was immediately followed by the refiling of those charges in this case—a maneuver the State undertook several days after the adverse ruling from this court in Tarry I. The State readily acknowledges the goal of the maneuver to be precisely what the circumstances otherwise indicate. The State wanted a do-over on the issue of the constitutionality of the police search of Parry’s residence and the seizure of the marijuana and paraphernalia from inside the home, so it could assert arguments it failed to raise during the first hearing. Under those circumstances, the prosecution of Pariy should be treated as a single proceeding for purposes of the law of the case.
The Kansas Supreme Court has similarly viewed the filing of the same criminal charges against the same defendants in successive cases as a single action to compute speedy trial time under K.S.A. 22-3402. State v. Cuezze, Houston & Faltico, 225 Kan. 274, 277-78, 589 P.2d 626 (1979); see State v. Goss, 245 Kan. 189, 192, 777 P.2d 781 (1989) (recognizing that Kansas courts tack time in successive cases when State dismisses and refiles as “a subterfuge . .
The legislature has provided a remedy for dre State if it wishes to dispute a district court ruling granting a defendant’s motion to suppress. The State may take an immediate, interlocutory appeal. And the State did just that in Parry I. We do not see any sound basis for embroidering additional remedies into the common law, especially at the expense of fairness and judicial efficiency fostered by law of the case. Accordingly, the State could not breach the barrier of law of the case here by dismissing and refiling as it did.
The doctrine, then, applies to the issue of the constitutionality of the search of Parry’s apartment unless some specific circumstance would excuse its application. We see none. First, of course, the district court’s initial ruling granting the motion to suppress was not clearly erroneous. The panel in Parry I so ruled. See Collier, 263 Kan. 629, Syl. ¶ 3 (doctrine inapplicable to preserve “clearly erroneous” decision). Likewise, there is no manifest injustice here. 263 Kan. 629, Syl. ¶ 3. The State had a full and fair opportunity to present whatever arguments it chose in opposing the original motion to suppress. The State doesn’t claim otherwise. So the State could have argued exigent circumstances based on the loss of evidence and inevitable discovery because it could have obtained a search warrant from a judge. But it didn’t malee those arguments. Neither of them rests on a newly minted legal theory or a material change in the law. See State v. Mell, 39 Kan. App. 2d 471, 482, 182 P.3d 1, rev. denied 286 Kan. 1183 (2008) (court discusses factors in determining when potential loss of evidence
In marshalling their arguments, legal advocates always pick and choose among possible positions, honing the promising ones and jettisoning those that don’t seem to be. Having chosen disadvantageously, especially in hindsight, an advocate cannot lay claim to manifest injustice as a result. If that were true, law of the case would be on the way to the legal dustbin where motions for judgments n.o.v. and depositions on written questions now take up space.
The dissent’s rejoinders fall short. First, the dissent suggests we have ignored the State’s argument that the issue decided in Parry I was confined to consent. But we carefully, though implicitly, disposed of the contention simply by correctly defining die issue on the motion to suppress as whether tire search and seizure conformed to the Fourth Amendment. Parry submitted that the search and seizure did not, since tire law enforcement officers had no warrant and the facts supported no exception to the warrant requirement. In Parry I, the State argued Parry consented, eliminating the need for a search warrant. The State also could have argued exigent circumstances and inevitable discovery but chose not to. The State’s position and the dissent’s observation collapse the governing issue into the arguments presented on that issue as if they were the same. Doing so largely negates law of the case and would preclude only repetition of the same arguments on an issue rather than relitigation of the issue.
The dissent then says it is unconvinced Parry I and this case should be treated as tire same proceeding and cites authority for the propositions that criminal cases dismissed without prejudice may be refiled and that one district court judge may consider a pretrial ruling of another district court judge in a single criminal prosecution. But none of that authority entails comparable circum
This court’s decision in State v. Heigele, 14 Kan. App. 2d 286, 789 P.2d 218 (1990), is similarly off tire mark and provides neither controlling nor persuasive force for the dissent. There, the district court granted a defendant’s motion to suppress as a sanction because the State twice fáiled to have witnesses available for the scheduled evidentiary hearing. So tire district court never ruled on tire merits of tire motion. The State dismissed tire case. Several months later, the State refiled the charges against Heigele. Another district court judge took judicial notice of the suppression order from the earlier case and held collateral estoppel required it be applied in the new case. A panel of this court reversed because collateral estoppel requires the adjudication of and a final judgment based on ultimate facts. 14 Kan. App. 2d at 287. The court reasoned that in a criminal prosecution, collateral estoppel operates no more broadly than the constitutional prohibition on double jeopardy and Heigele had not been placed in jeopardy in the first prosecution. 14 Kan. App. 2d at 287; see Ashe v. Swenson, 397 U.S. 436, 443-45, 90 S. Ct. 1189, 25 L. Ed. 2d 469 (1970) (collateral estoppel incorporated into double-jeopardy protection of the Fifth Amendment to United States Constitution); State v. Roberts, 293 Kan. 29, Syl. ¶ 5, 259 P.3d 691 (2011) (“Jeopardy attaches only when a jury is impaneled and sworn or in a bench trial when the judge begins to receive evidence.”). The panel in Heigele didn’t consider or discuss law of the case. And there never was an appellate review of the original order sanctioning the State, a component of law of the case as we consider the rule.
We affirm the district court’s ruling granting Parry’s second motion to suppress because the constitutionality of the search was foreclosed by the district court’s original ruling and this court’s decision affirming that ruling in Parry I. In short, law of the case disposes of the issue at this juncture.
Affirmed.
⅜ # *
We consider law of the case in terms of respect for tire holding of an earlier appellate decision in the same proceeding. That is tire sense of the rule discussed, for example, in Collier, 263 Kan. 629, Syl. ¶ 3. In that context, the rule commands considerable respect and may be disregarded only in compelling situations. It
Dissenting Opinion
dissenting: While I agree with foe majority that
The law of tire case doctrine is a discretionaiy policy of the trial court which is not generally raised in tire first instance by an appellate court. “The law of the case doctrine is a discretionary policy which allows the court to refuse to reopen a matter already decided, without limiting its power to do so.” Davin v. Athletic Club of Overland Park, 32 Kan. App. 2d 1240, 1242, 96 P.3d 687 (2004) (citing Bichelmeyer Meats v. Atlantic Ins. Co., 30 Kan. App. 2d 458, Syl. ¶ 2, 42 P.3d 1191 [2001]). The trial court is in the best position to determine whether to enforce that policy. Here, the law of the case doctrine was not raised below, was not raised on appeal, and played no part in tire district court’s decision.
This court raised the issue on its own initiative and invited tire parties to file supplemental briefs regarding the law of tire case doctrine. The parties did so. In its brief, the State contends the doctrine should not apply here because the issue previously examined by the Court of Appeals was solely consent, and the issues of exigent circumstances and inevitable discovery were not decided. The majority does not address that objection.
The State also contends that this is a separate case from Parry I. As the State points out in its supplemental brief, the State dismissed Parry I without prejudice and refiled the case anew. That is not a mere legal fiction to be overlooked. As generally understood, the phrase “without prejudice” means “ ‘there is no decision of the controversy on its merits, and leaves the whole subject in litigation as much open to another application as though no suit had ever been brought.’ ” Frost v. Hardin, 1 Kan. App. 2d 464, 466, 571 P.2d 11 (1977), aff'd 224 Kan. 12, 577 P.2d 1172 (1978).
The majority dismisses the fact that two separate cases are involved by relying on cases which have held that in the “exceptional circumstance” when the State dismisses and refiles a case as a clear subterfuge to avoid dismissal under the speedy trial statute, the court can taclc the time from one case on to another for purposes of computing speed trial time. See State v. Goss, 245 Kan. 189, 192, 777 P.2d 781 (1989). But such cases are not sufficiently anal
Such an approach overlooks our caselaw approving the State’s dismissal and refiling of criminal cases for various reasons. See, e.g., State v. Zimmerman & Schmidt, 233 Kan. 151, 155, 660 P.2d 960 (1983) (noting State may refile complaint or appeal tire discharge of defendant resulting from a preliminary hearing); State v. Rowland, 172 Kan. 224, 227-28, 239 P.2d 949 (1952) (finding that where the State seeks and the district judge approves a dismissal without prejudice of the prior case, the procedure does not “prejudice a fresh prosecution on a new information charging Ae identical offense set forth in Ae prior information”). The Supreme Court has noted Aat a Astrict judge may exercise Ascretion to re-entertain a motion to suppress evidence previously ruled on by another judge in Ae same case. State v. Riedel, 242 Kan. 834, 838, 752 P.2d 115 (1988); State v. Jackson, 213 Kan. 219, 226, 515 P.2d 1108 (1973); State v. Olson, 11 Kan. App. 2d 485, 488, 726 P.2d 1347, rev. denied 240 Kan. 805 (1986). And the Court of Appeals has held Aat a Astrict judge has “boA Ae discretion and Ae duty” to consider a suppression issue anew where the State receives a ruling on a suppression motion then Asmisses Ae suit wiAout prejuAce, refiles Ae case, and raises Ae suppression issue again. State v. Heigele, 14 Kan. App. 2d 286, 288, 789 P.2d 218 (1990).
Where, as here, two separate suits are filed for whatever reason, Ae law of Ae case doctrine is inapplicable. In such situations, res juAcata or collateral estoppel may apply. See Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326 n.5, 99 S. Ct. 645, 58 L. Ed. 2d 552 (1979) (finAng res juAcata bars a second suit involving the same parties and Ae same cause of action once a judgment has been rendered on Ae merits by a court of law); Collins v. State, No. 99,462, 2009 WL 196194, at *4 (Kan. App. 2009) (unpublished opinion) (finAng where the only Afferences between Ae two motions are a party’s legal Aeories wiA respect to Ae facts, and not Ae operative facts Aemselves, the second motion is properly barred by claim preclusion).
It is unnecessary to examine whether all Ae elements of res juAcata or collateral estoppel are present in this case, however,
“Res judicata and collateral estoppel are affirmative defenses. K.S.A. 60-208(c); see Estate of Belden v. Brown County, 46 Kan. App. 2d 247, 262, 261 P.3d 943 (2011). Under K.S.A. 60-208(c), affirmative defenses must be set forth in a defendant’s answer. If an affirmative defense is not asserted in an answer, it is waived. Turon State Bank v. Bozarth, 235 Kan. 786, Syl. ¶ 1, 684 P.2d 419 (1984); Coffman v. State, 31 Kan. App. 2d 61, 67, 59 P.3d 1050 (2002).” Church of God in Christ, Inc. v. Bd. of Trustees, 47 Kan. App. 2d 674, 685, 280 P.3d 795 (2012).
A district court commits error by raising an affirmative defense on its own initiative. Estate of Belden v. Brown County., 46 Kan. App. 2d 247, Syl. ¶ 2, 261 P.3d 943 (2011). Here, no preclusion theory was raised by. a party below or on appeal, and none played any part in the district court’s decision. This court lacks tire authority to assert res judicata or collateral estoppel sua sponte on appeal.
I disagree with the sole basis for the decision given by the majority but given the procedural posture of the case believe any discussion of the merits of the suppression issue would be merely advisory. Accordingly, I dissent.