STATE OF KANSAS, Appellant, v. CARL VRABEL, Appellee.
No. 108,930
Supreme Court of Kansas
April 24, 2015
347 P.3d 201
Opinion filed April 24, 2015.
Jonathan A. Bortnick, of Bortnick, McKeon, Sakoulas & Schanker, P.C., of Kansas City, Missouri, argued the cause and was on the brief for appellee.
Daniel E. Monnat, of Monnat & Spurrier, Chtd., of Wichita, was on the brief for amicus curiae Kansas Association of Criminal Defense Lawyers.
The opinion of the court was delivered by
JOHNSON, J.: Law enforcement officers employed by the City of Prairie Village set up a controlled
FACTUAL AND PROCEDURAL BACKGROUND
On July 26, 2011, a CI advised Corporal Ivan Washington of the Prairie Village Police Department (PVPD) that Carl Vrabel had hashish—a form of marijuana—for sale. At Washington‘s request, the CI arranged to buy drugs from Vrabel the following day at a location specified by Washington, which was a grocery store parking lot at 95th and Mission in Leawood. Washington would explain that PVPD frequently used the Leawood location for drug buys and that it was located on a main thoroughfare to Missouri, where Vrabel lived.
The next day, prior to the buy, the CI met with Washington and other officers in Prairie Village. The officers placed a recording device on the CI and provided her with money to purchase drugs from Vrabel. The PVPD officers then followed the CI to the controlled buy location in Leawood. Shortly thereafter, Vrabel arrived, parked his vehicle, and entered the CI‘s vehicle. The CI gave Vrabel money in exchange for hashish. Once the transaction concluded, Vrabel returned to his vehicle and left the area. The PVPD officers did not follow Vrabel or attempt to contact him on the day of the controlled buy. When the CI left the parking lot, she met the PVPD officers and gave them the purchased hashish.
In October 2011, the PVPD contacted Vrabel in Missouri. At the PVPD‘s request, Vrabel voluntarily followed the officers back to Prairie Village. After learning that Vrabel “didn‘t want to cooperate,” the PVPD sent the matter to the district attorney‘s office. On March 9, 2012, the State charged Vrabel with distribution of marijuana and use of a communication facility to sell a controlled substance. On March 20, 2012, nearly 8 months after the drug buy, the Johnson County District Court issued a warrant for Vrabel‘s arrest. Vrabel voluntarily surrendered on March 26, 2012.
Vrabel filed a motion to suppress the hashish, the audio recording of the controlled buy, and surveillance photos of the scene, arguing that the PVPD “had no jurisdiction to set up and investigate a crime in the City of Leawood, Kansas.” At evidentiary hearings on the motion to suppress, the State put on testimonial evidence from Washington and Captain Kevin Cauley of the Leawood Police Department (LPD) to support its position that the PVPD had jurisdiction to conduct the controlled buy in Leawood. Washington explained that his normal protocol when the PVPD conducts an investigation in Leawood is to contact Cauley and notify him of the investigation, allowing Cauley to determine if the LPD wants to assist.
On this particular occasion, Washington explained that LPD officers were not present at the buy location and did not provide assistance to Washington. Rather, Washington called Cauley and notified him that the PVPD was coming to Leawood for a narcotics investigation. Washington called Cauley again when the PVPD officers were on their way to Leawood to conduct the investigation. After the buy was completed, Washington attempted to call Cauley twice to inform him that the buy was successful and the officers were leaving.
Cauley confirmed that his phone records reflected three phone calls from Washington
The State filed an interlocutory appeal of the district court‘s decision to suppress evidence to the Court of Appeals. The Court of Appeals majority found that the PVPD had jurisdiction in Leawood based on a provision in
We begin with an analysis of
EXTRATERRITORIAL JURISDICTION TO CONDUCT CONTROLLED DRUG BUYS
“(2) Law enforcement officers employed by any city may exercise their powers as law enforcement officers:
(a) Anywhere within the city limits of the city employing them and outside of such city when on property owned or under the control of such city; and
(b) in any other place when a request for assistance has been made by law enforcement officers from that place or when in fresh pursuit of a person.
. . . .
“(5) In addition to the areas where law enforcement officers may exercise their powers pursuant to subsection (2), law enforcement officers of any jurisdiction within Johnson or Sedgwick county may exercise their powers as law enforcement officers in any area within the respective county when executing a valid arrest warrant or search warrant, to the extent necessary to execute such warrants.
. . . .
“(7) In addition to the areas where law enforcement officers may exercise their powers pursuant to subsection (2), law enforcement officers of any jurisdiction within Johnson county may exercise their powers as law enforcement officers in any adjoining city within Johnson county when any crime, including a traffic infraction, has been or is being committed by a person in view of the law enforcement officer. A law enforcement officer shall be considered to be exercising such officer‘s powers pursuant to subsection (2), when such officer is responding to the scene of a crime, even if such officer exits the city limits of the city employing the officer and further reenters the city limits of the city employing the officer to respond to such scene.”
K.S.A. 2014 Supp. 22-2401a .
The interpretation, construction, and application of a statute are questions of law subject to unlimited review. See State v. Dale, 293 Kan. 660, 662, 267 P.3d 743 (2011).
Analysis
No one disputes that the PVPD officers involved in the controlled buy were municipally employed law enforcement officers within the meaning of
But here, the district court specifically found that the PVPD officers had “exercised their powers as law enforcement officers” in Leawood. We agree. There was no citizen‘s arrest made when the drugs were bought and evidence was obtained. In fact, Vrabel was not arrested until he turned himself in to authorities 8 months after the Leawood transaction. The PVPD officers were investigating whether Vrabel was committing drug offenses, and they endeavored to trap Vrabel selling drugs. To set the trap, PVPD officers facilitated a CI‘s purchase of an illegal drug from Vrabel outside the boundaries of their city. If the officers were acting as private citizens, i.e., were not exercising their police powers, then they were aiding and abetting the commission of a drug felony in Leawood. Off-duty city officers acting as private citizens cannot lawfully buy drugs through an intermediary in neighboring cities. Moreover, the intermediary (CI) would not be an agent of law enforcement, so that she could not lawfully possess the hashish to carry it from Vrabel to the off-duty officers. In short, Miller‘s tack of treating the law enforcement officers as private citizens cannot be used to validate an extraterritorial controlled drug buy that was not an authorized exercise of police power under
The State argues that
In essence, the State‘s argument suggests that the legislature intended for city officers
Nor are we moved by the State‘s warning that our failure to rewrite the statute to limit its applicability to searches and seizures will “cripple law enforcement agencies.” As the amicus brief pointed out, the topic of the territorial limitation of city police jurisdiction is subject to competing public policies, best resolved by the legislature, as described in that brief‘s citation to Texas law:
“It may be argued that there is always a serious shortage of peace officers and that the shortage can be partially alleviated by abolishing territorial limitations on their power and by granting them countywide or statewide warrantless arrest authority. On the other hand, it may be argued that the common-law rule is needed in order to preserve local civilian control of peace officers, who should not be allowed to operate in cities or counties whose elected leaders have no control over their selection, training, discipline, supervision, and performance. These are difficult issues which are, and should be, controversial, but they are for the legislature to decide, not us. The legislature may, by simple majority vote, grant broad statewide warrantless arrest powers to all peace officers, thus abrogating both the common-law rule keeping city police in their cities and the limitations of Chapter 14 on warrantless arrests.” Love v. State, 687 S.W. 2d 469, 478 (Tex. App. 1985), superseded by statute as stated in Britt v. State, 768 S.W. 2d 514 (Tex. App. 1989).
Although the Court of Appeals majority found that
The Vrabel majority then looked at the testimony of PVPD and LPD officers describing the normal protocol that area departments followed when conducting a controlled drug buy in a neighboring city. Essentially, the officers testified that if PVPD wanted to set up a controlled buy in Leawood, the PVPD officers would notify LPD of their plans and then LPD may, or may not, provide assis- tance to the PVPD officers. From its review of the holdings in Ross, Rowe, and Davidson, the Vrabel majority apparently gleaned that the cities’ normal protocol with respect to controlled drug buys was tantamount to an oral agreement of mutual assistance which would satisfy the “request for assistance” exception under
The Vrabel concurring opinion took issue with the majority‘s characterization of the arrangement between PVPD and LPD as constituting a subsection (2)(b) request for assistance because “law enforcement officers from Leawood never requested assistance from the Prairie Village police officers.” (Emphasis added.) 49 Kan. App. 2d at 72 (Malone, C.J., concurring). We agree. Rather, the testimony simply established that if PVPD decided on its own to arrange for a controlled drug buy in Leawood, it would notify the contact person with the LPD of its plans. Sometimes, LPD would assist the PVPD officers, but subsection (2)(b) requires the request for assistance to be made by the law enforcement officers from the place where the drug buy is being conducted, i.e., LPD had to request PVPD‘s assistance. Moreover, LPD‘s failure to object did not transform PVPD‘s notification into a request for assistance from LPD. As the majority acknowledged, Rowe clarified that “acquiescence or acceptance of assistance” by the invaded jurisdiction does not constitute a request for assistance from the foreign officers. 49 Kan. App. 2d at 66.
The concurrence also pointed out that Rowe and Davidson, relied upon by the majority, were distinguishable. The long-standing oral agreement between departments in Rowe dealt only with making the initial contact for emergency calls. 49 Kan. App. 2d at 73 (Malone, C.J., concurring). Here, PVPD‘s controlled drug buy was not an emergency and LPD never did respond or participate. In Davidson, as well as in Ross, there were explicit requests for assistance made by the law enforcement officers in the jurisdictions in which the city officers exercised their police powers. Consequently, the concurrence opined that with respect to the “request for assistance” exception, the Sodders case more closely resembled Vrabel‘s circumstances. 49 Kan. App. 2d at 74-75 (Malone, C.J., concurring).
In Sodders, two detectives of the Overland Park Police Department (OPPD) asked the Lenexa Police Department for assistance in executing a search warrant in Lenexa and three Lenexa officers provided security while the OPPD detectives conducted the search. This court held that the mere presence of the Lenexa officers, even at the request of OPPD, did not meet the request for assistance requirements of
In short, we hold that when PVPD officers set up and conducted a controlled drug buy in Leawood, simply notifying LPD of their plans, they were not operating under the request for assistance exception to the territorial limitations of
The State also urges us to apply the Johnson County bordering municipalities exception set forth in
Finally, after oral argument, the State filed a letter of additional authority pursuant to Supreme Court Rule 6.09(b) (2014 Kan. Ct. R. Annot. 52), citing a recent United
The State‘s 6.09(b) letter does not “contain a reference either to the page(s) of the brief intended to be supplemented or to a point argued orally to which the citation pertains” as required by 6.09(b)(1)(D). 2014 Kan. Ct. R. Annot. at 53. Presumably, the State is arguing that the PVPD made an objectively reasonable mistake of law in interpreting
The bottom line is that the district court was correct in finding that the PVPD officers lacked jurisdiction to conduct the controlled drug buy in Leawood because the officers were acting outside the boundaries of the city that employed them and their actions did not fall within one of the statutory exceptions allowing city officers to exercise their police powers outside of their own jurisdiction.
EXCLUSION OF EVIDENCE FOR A STATUTORY VIOLATION
The State cross-petitioned for review, based in part on the Court of Appeals concurrence, which opined that the suppression of evidence was not an appropriate remedy or sanction where Vrabel did not claim that PVPD‘s noncompliance with
First, we address the concurrence in the Court of Appeals’ published opinion which relied heavily upon federal cases considering the Fourth Amendment to the federal Constitution. The principal case discussed was United States v. Green, 178 F.3d 1099 (10th Cir. 1999), which involved a defendant‘s motion to suppress evidence obtained in a residential search that was conducted pursuant to a search warrant by officers who were outside their jurisdiction. The concurrence cited Green for the proposition that ” ‘the fact that the arrest, search, or seizure may have violated state law is irrelevant as long as the standards developed under the Federal Constitution were not offended.’ ” 178 F.3d at 1105. From the federal cases, the concurrence extrapolates a bright-line rule that the exclusionary rule can only be invoked to remedy a federal constitutional violation.
Contrary to that bright-line rule, the Kansas Supreme Court, in Sodders, affirmed the suppression of evidence based upon a
“As Vrabel points out, in Sodders the Kansas Supreme Court affirmed the district court‘s decision to suppress evidence seized by two Overland Park detectives who searched the defendant‘s apartment outside their jurisdiction in Lenexa in violation of 22-2401a. 255 Kan. at 84-85. There was nothing unconstitutional about the search, and in fact, it was conducted with a warrant. The search was unlawful only because it violated the statute. The majority opinion did not discuss the appropriate remedy for the violation of the statute. However, Justice Abbott dissented on multiple grounds, one of which was that the exclusionary rule should not be applied to suppress evidence when the defendant‘s constitutional rights were not violated. 255 Kan. at 95 (Abbott, J., dissenting).” State v. Vrabel, 49 Kan. App. 2d 61, 79, 305 P.3d 35 (2013) (Malone, C.J., concurring).
Curiously, after conceding the existence of that mandatory authority, the Vrabel concurrence declared that it was not required to follow the Sodders decision because the majority opinion in that case had not adequately explained why it was rejecting one of Justice Abbott‘s multiple reasons for dissenting, i.e., the exclusionary rule is inapplicable where a defendant‘s constitutional rights are not violated. The Kansas Court of Appeals is duty bound to follow the precedent of the Kansas Supreme Court. See, e.g., State v. Ottinger, 46 Kan. App. 2d 647, 655, 264 P.3d 1027 (2011), rev. denied 294 Kan. 946 (2012). That duty is not conditioned upon the lower court‘s satisfaction with the stated rationale in the Supreme Court‘s majority opinion, nor is it suspended when the lower court prefers the reasoning of a dissent. If the Supreme Court‘s holding needs to be refined, modified, or overturned, it is the province of the Supreme Court to effect that change, and until that happens, the Court of Appeals is duty bound to follow the existing precedent.
Nevertheless, we discern that Sodders is not applicable here for another reason; it is factually distinguishable. As the Court of Appeals concurrence described, Sodders involved a search and seizure; the officers of one city executed a search warrant on the defendant‘s apartment located in another city and seized the defendant‘s property, which evidence the defendant then moved to suppress. That motion to suppress illegally seized property would have been governed by
But we need not decide today whether the search or seizure exclusionary rule should apply to evidence obtained via a warrant search by officers who were not jurisdictionally authorized to execute the warrant at the site of the search. Those are not the facts presented in this case. As the State asserts in its petition for review, this is quite simply not a search and seizure case and neither the exclusionary rule nor the provisions of
Granted, the State indirectly enticed the defendant to relinquish possession of the drugs by helping the CI stage the controlled buy and by supplying the money to purchase the drug. But no one has explained how that exercise of police power can be characterized as a search or seizure, within the purview of the Fourth Amendment to the United States Constitution or § 15 of the Kansas Constitution Bill of Rights. Recently, we explained:
“The Fourth Amendment to the United States Constitution prohibits unreasonable searches and seizures. Warrantless searches are presumed to be unreasonable. See State v. Daniel, 291 Kan. 490, 496, 242 P.3d 1186 (2010), cert. denied 563 U.S. 945 (2011); see also Arizona v. Gant, 556 U.S. 332, 338, 129 S. Ct. 1710, 173 L. Ed. 2d 485 (2009). The Fourth Amendment is not implicated, however, unless the person invoking its protection had a ’ “justifiable,” ’ ’ “reasonable,” ’ or ’ “legitimate expectation of privacy” ’ that was invaded by government action. Smith v. Maryland, 442 U.S. 735, 740, 99 S. Ct. 2577, 61 L. Ed. 2d 220 (1979); see also Illinois v. Caballes, 543 U.S. 405, 408, 125 S. Ct. 834, 160 L. Ed. 2d 842 (2005) (‘Official conduct that does not “compromise any legitimate interest in privacy” is not a search subject to the Fourth Amendment. [Citation omitted.]‘).” State v. Burnett, 300 Kan. 419, 441, 329 P.3d 1169 (2014).
Accordingly, the remedy or sanction for the officers’ extra-jurisdictional exercise of
The amicus points us to United States v. Giordano, 416 U.S. 505, 524-29, 94 S. Ct. 1820, 40 L. Ed. 2d 341 (1974), where the United States Supreme Court held that violation of the federal wiretapping statute required suppression of evidence. But there, the wiretapping statute explicitly provided for exclusion. 416 U.S. at 524-25. Consequently, that precedent is insufficiently analogous to be persuasive.
Alternatively, the amicus urges us to exercise our inherent supervisory authority to suppress evidence obtained in violation of state law. It points to the stance taken by the Hawaii Supreme Court in State v. Pattioay, 78 Hawaii 455, 896 P.2d 911 (1995). That case involved a violation of the Posse Comitatus Act (PCA) when a controlled drug buy conducted by the military led to a search warrant for the defendant‘s house. The Hawaiian court recognized the general rule that a violation of the PCA did not require the application of the exclusionary rule. But the court reasoned that
“[t]he purpose of the exclusionary rule, as we see it, is primarily to deter illegal police conduct and secondarily to recognize that the courts of this State have the inherent supervisory power over criminal prosecutions to ensure that evidence illegally obtained by government officials or their agents is not utilized in the administration of criminal justice through the courts.” 78 Hawaii at 468.
Consequently, the court refused to ignore the clear violation of the law and thereby justify and condone such illegality by using tainted evidence in the criminal courts of that state. 78 Hawaii at 469.
At first blush, Hawaii‘s rationale of maintaining the integrity of the judicial process by refusing to justify and condone tainted evidence is mildly seductive. But a closer look at the purpose of
With the enactment of
But, by not granting statewide jurisdiction to all law enforcement officers, the legislation maintained local control by cities and counties, protecting them from unwanted intrusion by neighboring law enforcement officers over whom the invaded territory would have no control. For instance, the governing body of a city may endeavor to establish stringent policies on the use of force by law enforcement
In short, it is apparent that the statutory limitations on the jurisdiction of city officers was put in place to protect the local autonomy of neighboring cities and counties, rather than to create an individual right, assuring that a person could only be caught breaking the law by an officer of the jurisdiction within which the crime was being committed. Such an individual right strikes one as a bit nonsensical. How was Vrabel adversely impacted by PVPD, rather than LPD, arranging and paying for the controlled drug buy? Moreover, a purpose to create an individual right to be free from apprehension by an officer from outside the jurisdiction is belied by the exceptions incorporated into
Consequently, the suppression of any evidence obtained during a city officer‘s unauthorized exercise of police power outside the officer‘s employing city—other than a search or seizure—will gen- erally not be required. That is especially so in circumstances such as presented in this case where the defendant has not been prejudiced in the least by the fact that PVPD arranged the drug buy, rather than LPD. Therefore, notwithstanding that the district court surely thought it was dutifully following the precedent set in Sodders, we must reverse its suppression of the evidence. The Court of Appeals decision is affirmed on different grounds.
But before concluding, a word of caution might be in order. Like our sister state to the west: “[T]his court cannot sanction willful and recurrent violations of the law’ and . . . future violations ‘may trigger application of the [exclusionary] rule.’ ” People v. Martinez, 898 P.2d 28, 33 (Colo. 1995) (quoting People v. Wolf, 635 P.2d 213, 217 [Colo. 1981]).
The decision of the Court of Appeals is affirmed. The decision of the district court is reversed, and the case is remanded for further proceedings.