State v. Vrabel , 301 Kan. 797 ( 2015 )

IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 108,930
STATE OF KANSAS,
Appellant,
v.
CARL VRABEL,
Appellee.
SYLLABUS BY THE COURT
1.
K.S.A. 2014 Supp. 22-2401a describes the territory in which law enforcement
officers employed by a city may exercise their powers as law enforcement officers.
2.
Generally, city law enforcement officers may exercise their police powers within
the city limits of the city that employs them; in any other place when a request for
assistance has been made by law enforcement officers from that other place; or when in
fresh pursuit of a person.
3.
The legislature has granted additional extraterritorial jurisdiction to city law
enforcement officers in Sedgwick and Johnson counties when executing a valid arrest
warrant or search warrant within the respective county. The legislature has granted
additional extraterritorial jurisdiction to city law enforcement officers in Johnson County,
allowing city officers to 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.
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4.
The statutory territorial constraints on city law enforcement officers apply to the
exercise of all of their powers as law enforcement officers; K.S.A. 2014 Supp. 22-2401a
does not apply solely to searches and seizures. When a city law enforcement officer
arranges and provides the money for a controlled drug buy through a confidential
informant, that officer has exercised his or her powers as a law enforcement officer
within the meaning of the jurisdictional constraints of K.S.A. 2014 Supp. 22-2401a.
5.
To exercise their powers as law enforcement officers in a place outside the
boundaries of their own city pursuant to the "request for assistance" exception under
K.S.A. 2014 Supp. 22-2401a(2)(b), the city officers must have received a request for
assistance from the law enforcement officers of the other place. Mere acquiescence or
acceptance of assistance by the officers of the invaded jurisdiction after notification by
the invading officers does not constitute a request for assistance under K.S.A. 2014 Supp.
22-2401a(2)(b).
6.
The Johnson County bordering municipalities exception set forth in K.S.A. 2014
Supp. 22-2401a(7) applies when a crime has been or is being committed in view of the
intruding officer, but it does not apply when the intruding officer anticipates a future
viewing of a crime for which the officer has arranged, such as a controlled drug buy.
7.
The legislative purpose for imposing territorial jurisdiction limitations on the
exercise of police powers by city law enforcement officers is to maintain and protect the
local autonomy of neighboring cities and counties, allowing each governmental unit to
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control the exercise of police powers within its respective jurisdiction. K.S.A. 2014 Supp.
22-2401a was not intended to create additional individual rights for criminal defendants.
8.
The suppression of evidence is not the appropriate remedy where city law
enforcement officers have exercised their police powers to arrange and fund a controlled
drug buy in another jurisdiction in violation of the jurisdictional constraints of K.S.A.
2014 Supp. 22-2401a(2) and where the aggrieved person has made no illegal search or
seizure claim and has not alleged a willful and recurrent violation of the law by the city
law enforcement officers involved in the drug buy.
Review of the judgment of the Court of Appeals in 49 Kan. App. 2d 61, 305 P.3d 35 (2013).
Appeal from Johnson District Court; STEPHEN R. TATUM, judge. Opinion filed April 24, 2015. Judgment
of the Court of Appeals reversing the district court is affirmed. Judgment of the district court is reversed,
and the case is remanded.
Shawn E. Minihan, assistant district attorney, argued the cause, and Stephen M. Howe, district
attorney, and Derek Schmidt, attorney general, were with him on the brief for appellant.
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 drug buy from Carl Vrabel to occur in the neighboring Johnson
County city of Leawood. As a result of the controlled buy, the district attorney filed
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felony drug charges against Vrabel. But the district court suppressed evidence of the
drugs and the conversation between the confidential informant (CI) and Vrabel during the
controlled buy because the Prairie Village officers had obtained that evidence while
exercising their police powers outside of their jurisdiction as authorized under K.S.A.
2014 Supp. 22-2401a(2). The Court of Appeals reversed, finding an implied agreement
between the two cities that constituted a request for assistance by Leawood to Prairie
Village. Vrabel seeks review of that reversal. Also, the State seeks our review of K.S.A.
2014 Supp. 22-2401a's applicability to the facts of this case and of the question of
whether excluding evidence was an appropriate remedy for a jurisdictional violation
under K.S.A. 2014 Supp. 22-2401a. We affirm the result reached by the Court of
Appeals; we reverse the district court and remand for further proceedings.
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
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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,
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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 on the day of the controlled buy but explained that he did not remember the
content of the conversations. He explained that he believed the LPD stayed out of the
area but was not 100 percent certain.
The district court granted Vrabel's motion to suppress because the court found that
the PVPD "obtained the challenged evidence through an investigation and controlled
drug transaction that occurred in Leawood, Kansas, [and,] therefore, they exercised their
powers as law enforcement officers outside of their jurisdiction pursuant to K.S.A. [2014
Supp.] 22-2401a(2)."
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 K.S.A. 2014 Supp. 22-2401a(2)(b)
allowing municipal officers to exceed their jurisdictional boundaries when another
jurisdiction requests assistance. State v. Vrabel, 49 Kan. App. 2d 61, 68-69, 305 P.3d 35
(2013). One concurring member of the panel disagreed with the majority's holding that
the statutory request for assistance provision applied to this case but opined that
suppression of the evidence was not the appropriate remedy for the statutory violation
"because Vrabel's constitutional rights were not violated by the police officers' conduct."
49 Kan. App. 2d at 69 (Malone, C.J., concurring). Vrabel timely petitioned this court for
review. This court also granted the State's cross-petition for review and the Kansas
Association of Criminal Defense Lawyers' motion to file an amicus brief.
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We begin with an analysis of K.S.A. 2014 Supp. 22-2401a's jurisdictional
limitations and specific grants of extraterritorial authority, to ultimately determine that
PVPD exceeded its statutory jurisdictional authority when it arranged for a controlled
drug buy in Leawood. But then we determine that, under the facts of this case,
suppression of the drugs, audio recording, and surveillance photographs was not the
appropriate remedy for PVPD's statutory violation.
EXTRATERRITORIAL JURISDICTION TO CONDUCT CONTROLLED DRUG BUYS
K.S.A. 2014 Supp. 22-2401a contains the provisions which govern the territory in
which a city-employed law enforcement officer may exercise his or her police powers.
The relevant portions of that statute state:
"(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
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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.
Standard of Review
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 K.S.A. 2014
Supp. 22-2401a(2). See also K.S.A. 22-2202(13) (defining law enforcement officer). But
the plain statutory language only constrains the exercise of the officers' "powers as law
enforcement officers." K.S.A. 2014 Supp. 22-2401a(2). And in State v. Miller, 257 Kan.
844, Syl. ¶ 1, 896 P.2d 1069 (1995), the court opined that "[a]n officer who makes an
arrest without a warrant outside the territorial limits of his or her jurisdiction must be
treated as a private person." Miller opined that a law enforcement officer who is acting
outside the scope of his or her powers under K.S.A. 2014 Supp. 22-2401a does not meet
K.S.A. 22-2202(13)'s definition of a law enforcement officer, and, therefore, the officer is
eligible to make a citizen's arrest pursuant to K.S.A. 22-2403. 257 Kan. at 851.
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
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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 K.S.A. 2014 Supp. 22-2401a.
The State argues that K.S.A. 2014 Supp. 22-2401a has no application in this case
because that statute "is clearly limited to searches and seizures." But the clarity of such a
limitation is not revealed by a plain reading of the statutory language. See State v.
Phillips, 299 Kan. 479, 495, 325 P.3d 1095 (2014) (appellate court first attempts to
ascertain legislative intent through statutory language enacted, giving common words
their ordinary meanings); see also State v. Sodders, 255 Kan. 79, 84, 872 P.2d 736 (1994)
(declaring K.S.A. 22-2401a to be "clear"). The statute's plain language speaks to the city
police exercising "powers as law enforcement officers." Those powers would have to
include the authority to do all that is necessary to permit the city officer to meet his or her
common-law duty to the public to preserve the peace. Cf. Woodruff v. City of Ottawa,
263 Kan. 557, 563, 951 P.2d 953 (1997) (under common law, police duty to preserve the
peace is owed to the public, not an individual). In turn, preserving the peace would
logically include the activities in which the PVPD officers engaged in this case—
arranging a controlled buy to attempt to remove drug dealers from the streets—even
though they may stop short of seizing or searching the drug dealer. Moreover, as pointed
out in the Court of Appeals concurrence, at least one other jurisdiction has treated an
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officer's organizing and conducting a controlled drug buy as the exercise of police powers
subject to territorial jurisdiction limits. See State v. Stuart, 855 P.2d 1070, 1074 (Okla.
Crim. 1993) (invalidating search warrant obtained pursuant to controlled drug buy
arranged by city police to occur outside city limits; officer acting outside jurisdiction is
acting outside scope of authority).
In essence, the State's argument suggests that the legislature intended for city
officers to be able to exercise their police powers, other than searches and seizures,
anywhere they want. We discern no support for that proposition. To the contrary, we
observe that the legislature proved that it knows how to grant such wide-ranging
jurisdiction when it enacted K.S.A. 74-2108, stating that the Kansas Highway Patrol is
"vested with the power and authority of peace, police and law enforcement officers
anywhere within this state irrespective of county lines." (Emphasis added.)
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
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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 K.S.A. 2014 Supp. 22-2401a
applied to the activities in which the PVPD officers were engaged, it opined that those
activities fit within the "request for assistance" exception in subsection (2)(b). To
manufacture an implied request for assistance from the Leawood Police Department
(LPD), the majority relied upon its perception that there was "at least an implied
agreement for drug-buy assistance between the PVPD and LPD." 49 Kan. App. 2d at 68.
For authority, the majority looked to three cases: (1) State v. Ross, 247 Kan. 191, 194,
795 P.2d 937 (1990), which held that a request for assistance can exist regardless of
whether the requesting department actually needed assistance or could have handled the
matter without assistance; (2) State v. Rowe, 18 Kan. App. 2d 572, 573-74, 856 P.2d
1340, rev. denied 253 Kan. 863 (1993), which held that acquiescence or acceptance of
assistance is insufficient to establish a request for assistance but that a request for
assistance may come from a long-standing oral agreement between a sheriff's department
and a city police department permitting the city officers to "assist in emergency situations
near the county line for the purpose[] of the holding the situation stable until [sheriff's
officers] can arrive"; and (3) State v. Davidson, No. 98,862, 2008 WL 4291617, at *2
(Kan. App. 2008) (unpublished opinion), which upheld a county officer's request for a
city officer to effect a traffic stop of an erratic driver outside the city limits, even though
the city officer had initiated the call to report a "potentially dangerous situation."
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
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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 assistance 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 K.S.A. 2014 Supp. 22-2401a(2)(b). 49 Kan. App. 2d at
68.
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
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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 K.S.A. 22-2401a. 255
Kan. at 84. The legislature reacted by amending the statute to allow law enforcement
officers of any jurisdiction within Johnson County or Sedgwick County to exercise their
powers as law enforcement officers in any area within the respective county when
executing a search warrant. See State v. Mendez, 275 Kan. 412, 418, 66 P.3d 811 (2003)
(discussing L. 1994 ch. 286, sec. 1). But the legislature did not change the request for
assistance provision or alter Sodders' interpretation of that provision.
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 K.S.A. 2014 Supp. 22-
2401a.
The State also urges us to apply the Johnson County bordering municipalities
exception set forth in K.S.A. 2014 Supp. 22-2401a(7). That exception allows law
enforcement officers from any jurisdiction in Johnson County to exercise their police
powers "in any adjoining city within Johnson county when any crime . . . has been or is
being committed by a person in view of the law enforcement officer." Although clever,
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that argument is unpersuasive. Before Vrabel committed the distribution of marijuana in
front of the PVPD officers, they had already exercised police powers in Leawood by
setting the stage for the crime to occur and sending a CI into Leawood's jurisdiction with
funds to purchase the drug. The subsection (7) exception applies when the crime has been
or is being committed in view of the intruding officer, not when the officer anticipates a
future viewing of the crime for which the officer has arranged.
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
States Supreme Court opinion, Heien v. North Carolina, 574 U.S. ___, 135 S. Ct. 530,
190 L. Ed. 2d 475 (2014). In Heien, the Court held that an officer's mistake of law can be
objectively reasonable. 133 S. Ct. at 540.
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 K.S.A. 2014 Supp. 22-2401a. But the State's brief did not argue that the
PVPD made a reasonable mistake of law. Cf. State v. Littlejohn, 298 Kan. 632, 659, 316
P.3d 136 (2014) (refusing to consider argument not specifically raised in defendant's
brief). Further, the State's 6.09(b) letter makes no effort to establish the PVPD's mistake
of law and articulate why such a mistake was reasonable. We therefore decline to analyze
this new argument, proffered for the first time in a 6.09(b) letter.
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
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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 K.S.A.
2014 Supp. 22-2401a constituted a violation of his federal or state constitutional rights.
The State argues on review that this case did not involve a search or seizure, and,
therefore, the Fourth Amendment exclusionary rule does not apply. Moreover, based
upon its allegation that the statutory violation was of a technical nature and that the police
officers were acting in good faith under the normal protocol for the region, the State
contends that Vrabel simply has no remedy in this case.
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." 49 Kan. App. 2d at 78. 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.
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Contrary to that bright-line rule, the Kansas Supreme Court, in Sodders, affirmed
the suppression of evidence based upon a K.S.A. 2014 Supp. 22-2401a violation, without
finding a concurrent federal constitutional infringement. The concurrence acknowledged
this precedent, describing Sodders as follows:
"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.
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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 K.S.A. 22-3216, which says in subsection (1):
"Prior to the trial a defendant aggrieved by an unlawful search and seizure may move for
the return of property and to suppress as evidence anything so obtained." Pointedly, the
statutory right to suppress evidence is not restricted to those defendants who were
aggrieved by an unconstitutional search and seizure. Instead, the statute applies to an
unlawful search and seizure, and, as the amicus brief points out, the word "unlawful" is
often used in the context of a violation of state law.
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 K.S.A. 22-3216 apply here. The evidence Vrabel sought to suppress was obtained
during a voluntary encounter with the CI, during which Vrabel freely and voluntarily
produced and handed the hashish to the CI, before driving away unabated. Nobody or
nothing was searched; nobody or nothing was seized.
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
17
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. ___ (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 police power in arranging and funding a controlled drug buy outside their own city is
not governed by the exclusionary rule applicable to the federal and state constitutional
provisions prohibiting unreasonable searches or seizures. Likewise, it is not covered by
the statutory provision in K.S.A. 22-3216 for suppressing illegally seized evidence.
Moreover, K.S.A. 2014 Supp. 22-2401a does not tell us what is to happen when a law
enforcement officer exceeds his or her geographical limitations and, more specifically,
that statute does not provide for excluding evidence as a remedy for jurisdictional
violations. In contrast, Texas provides a blanket exclusionary remedy that encompasses
statutory violations. Tex. Crim. Proc. Code Ann. art. 38.23 (West 2005) ("No evidence
obtained by an officer or other person in violation of any provisions of the Constitution or
laws of the State of Texas, or of the Constitution or laws of the United States of America,
shall be admitted in evidence against the accused on the trial of any criminal case.").
18
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 Haw. 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 Haw. 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 Haw. 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 K.S.A. 2014 Supp. 22-2401a convinces us that exclusion is
not the appropriate remedy.
19
With the enactment of 22-2401a in 1977, the legislature modified the common
law. See City of Junction City v. Riley, 240 Kan. 614, 619, 731 P.2d 310 (1987).
Legislative history reveals that before K.S.A. 2014 Supp. 22-2401a's enactment, "there
[was] no law enforcement power beyond the limits of the city." Minutes of the Senate
Committee on Judiciary, March 3, 1977, p. 2. Supporters of the statute noted a desire to
"extend authority to officers when they are responding to a request for assistance."
Minutes of the Senate Committee on Judiciary, March 3, 1977, p. 2. But the testimony
also voiced serious concerns about the possibility of "giving statewide law enforcement
powers" to city officers. Minutes of the Senate Committee on Judiciary, March 3, 1977,
p. 2. Accordingly, the purpose of the statute originally enacted was to give law
enforcement the additional leeway needed to assist one another in certain circumstances,
such as when an officer was in fresh pursuit of a lawbreaker or when an officer was
observing a crime being committed.
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 officers against the
citizens of that city, but it would be hard-pressed to enforce its regulations against
marauding law enforcement officers from other jurisdictions. Even when the legislature
reacted to Sodders by amending K.S.A. 2014 Supp. 22-2401a to add subsection 5, it was
careful not to extend the extraterritorial jurisdiction of city officers to any cities other
than those within but two counties.
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
20
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
K.S.A. 2014 Supp. 22-2401a, which provide for ample lawful opportunities for such an
apprehension to occur.
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 generally 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.
21