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Enjoy Not much coming out of the Kansas courts, but there are a by mm6889

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									Enjoy. Not much coming out of the Kansas courts, but there are a few tasty tidbits from other
courts. Happy New Year!

In this issue:
New Laws
Civil and Criminal Liability
DUI
Employment & Discipline
First Amendment
Juveniles
Miscellaneous
Search and Seizure

New Laws
TEXTING WHILE DRIVING
As of January 1, 2011, officers can issue citations for Texting While Driving. The statute
is K.S.A. 8-15,111, and the Overland Park texting provision is OPMC 12.04.126.5(b). The city
charge carries a $90.00 fine. The bill specifically bans using text-based communication devices
to write, send, or read a written communication while driving. There are broad exceptions,
however. The law does not prohibit texting in the following circumstances:

  (1) A law enforcement officer or emergency service personnel acting within
  the course and scope of the law enforcement officer’s or emergency
  service personnel’s employment;
  (2) a motor vehicle stopped off the regular traveled portion of the roadway;
  (3) a person who reads, selects or enters a telephone number or name in a
  wireless communications device for the purpose of making or receiving a
  phone call;
  (4) a person who receives an emergency, traffic or weather alert message; or
  (5) a person receiving a message related to the operation or navigation of the
  motor vehicle.
  (6) using wireless communications to:
  (a) Report current or ongoing illegal activity to law enforcement;
  (b) prevent imminent injury to a person or property; or
  (c) relay information between transit or for-hire operator and the
  operator’s dispatcher, in which the device is permanently affixed to
  the motor vehicle.

It is an open question as to whether the prohibition applies while someone is sitting at a
stoplight. Technically, those persons are still operating a vehicle, but I can think of all kinds of
arguments why the prohibition should not apply if the car is not in motion. If their attention to
their cell phone causes them to miss a light or delay a reaction to the light, I suggest a more
appropriate violation would be inattentive driving under 12.04.103.

Civil and Criminal Liability
CITY CAN BE LIABLE
FOR FAILURE TO ADOPT AN ADEQUATE POLICY
REQUIRED BY THE DUE PROCESS CLAUSE
Los Angeles County, CA v. Humphries, 556 U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 09-
350, filed 11/30/10). In 2001, Craig and Wendy Humphries were arrested on child abuse charges
and listed in California's Child Abuse Central Index ("CACI"), which is organized under the
Child Abuse and Neglect Reporting Act ("CANRA"). All charges against the Humphrieses were
dismissed, and the Humphrieses obtained an order declaring them factually innocent. However,
the Humphrieses were unable to contest their listing in the CACI. The Humphrieses sued Los
Angeles County pursuant to 42 U.S.C. § 1983 seeking damages and declaratory relief
establishing that CANRA and policies related to the CACI are unconstitutional because of the
lack of procedures to challenge an individual's inclusion based on a substantiated claim. Los
Angeles County argued that as a local government it had no control over CACI procedures
because the state government created these policies. The district court agreed and granted
defendants summary judgment. The Ninth Circuit reversed and sided with the Humphrieses. It
held that that Los Angeles County's liability could flow from its failure to adopt an adequate
procedure, and liability should be determined according the requirements established in Monell
v.
Department of Social Services. It also held the plaintiffs were previaling parties and ordered the
defendants to pay $600,000 in attorney fees. In doing so, it said that Monell limitations do not
apply to claims for injuctive relief. The Supreme Court reversed, holding that Monell applies
whether the suit seeks damages or declaratory relief. If it can be shown that no city or county
policy caused plaintiff's alleged damages, these defendants would not be held liable.
TASERS SEIZE IN AN "ABRUPT AND VIOLENT" MANNER AND THEIR
USE MUST BE REASONABLE UNDER THE CIRCUMSTANCES
Cavanaugh v. Woods Cross City, ___ F.3d ___ (10th Cir. No. 10-4017, filed 11/03/2010). In an
action under 42 U.S.C. section 1983 alleging that defendant-officer's Tasering of plaintiff
violated her rights under the Fourth Amendment by using excessive force, the denial of summary
judgment based on qualified immunity is affirmed where: 1) although Tasers may not constitute
deadly force, their use unquestionably "seizes" the victim in an abrupt and violent manner; 2)
plaintiff did not pose an immediate threat to defendant or anyone else at the scene; and 3) a
reasonable jury could easily conclude that when the Taser was deployed plaintiff was not fleeing
-- she was quickly walking towards her own home -- where defendant could easily arrest her if he
so desired. Woods Cross officers were called to Cavanaugh's residence after a domestic dispute.
The husband told officers Ms. Cavanaugh stormed out of the house, and had a kitchen knife with
her. She had also consumed alcohol and pain killers. One officer remained at the house with the
husband. Ms. Cavanaugh returned, walking quickly towards the home. No knife was visible in
her hand. The officer that had stayed at the home walked up behind her and tased her in the
back, without warning. Ms. Cavanaugh went down, striking her head on the front concrete steps,
suffering tramautic brain injury.

DL Supensions
MINITRUCKS ARE VEHICLES AND OPERATION WHILE DRUNK IS
SUFFICIENT TO SUSPEND DRIVING PRIVILEGES
Shirley v. Kansas Department of Revenue, ___ Kan.App.2d ___, ___ P.3d ____ (No.103317,
filed 12/10/10). Operation of a minitruck while intoxicated was sufficent to suspend the
defendant's driver's license. A minitruck, is a vehicle weighing 1,400 pounds and having a 3- or
4-cylinder, 650 cc., 45-horsepower motor, which is 52 inches wide, has a 4-speed transmission,
and will run about 60 miles per hour. That constitutes a vehicle as defined by K.S.A. 2006
Supp. 8-1485.
MIRANDA WARNINGS NOT REQUIRED BEFORE INTERROGATION ON A
TRAFFIC STOP
Smith v. Kansas Department of Revenue, ___ Kan. ___, ___ P.3d ___ (No. 101744, filed
11/19/10). A trooper stopped Smith because his trailer lights were not working. He noticed an
odor associated with an alcoholic beverage coming from Smith and asked him whether he had
been drinking. Smith replied he had drank "a few." A DUI investigation ensued, and Smith's
drivers license was suspended for a year. Smith argued that the trooper should have Mirandized
him before asking incriminating questions. The Supreme Court affirmed the suspension, finding
that Miranda does not apply to traffic stops. It also upheld K.S.A. 8-1012 against a
constitutional challenge that probable cause, not reasonable suspicion should be required.
QUALIFICATIONS OF BLOOD COLLECTOR CAN BE RAISED IN
ADMINISTRATIVE SUSPENSION PROCEEDING
Henke v. Kansas Department of Revenue, ___ Kan.App.2d ___, ___ P.3d ____ (No. 102846,
filed 09/17/10). Pursuant to K.S.A. 2008 Supp. 8-1020(h)(3)(F), an individual holding a driver's
license who challenges an officer's certification of a blood test failure may raise issues
concerning whether the blood sample was collected in a reliable way. Such issues would include
whether the person who drew the blood sample from the individual holding the driver's license
was qualified to do so under K.S.A. 2008 Supp. 8-1001(c). But the district court did not err in
holding that Henke failed to meet his burden of proof to show that the person collecting the
blood was unqualified.
DUI
DEFENDANT ENTITLED TO JURY TRIAL UNLESS RECORD SHOWS
AFFIRMATIVE WAIVER BY A DEFENDANT
State v. Duncan, ___ Kan.App.2d ___, ___ P.3d ____ (No. 102356, filed 11/19/10). A Sedgwick
County deputy saw Duncan driving without headlights and stopped him. Duncan turned out to
be intoxicated and was convicted after a bench trial. The Court of Appeals held there was
sufficient evidence to convict Duncan, but reversed the conviction because Duncan was denied
his right to a jury trial. There was nothing in the record to show the Court advised Duncan of his
right to jury trial, and nothing to show that Duncan waived that right.
DIVERSIONS ENHANCE A SUBSEQUENT SENTENCE EVEN IF
DEFENDANT WAS A MINOR AT THE TIME OF THE DIVERSION
State v. Bishop, ___ Kan.App.2d ___, ___ P.3d ____ (2010 WL 3928911 (10/08/10). A
diversion agreement entered into by a minor to avoid prosecution on a driving under the
influence (DUI) charge counts against that person as a prior offense in a criminal proceeding on a
subsequent DUI charge the same as if the person had been an adult at the time of entering into
the agreement. Minors with driving privileges are subject to the same punishments as adult
drivers when they commit traffic offenses. The diversion agreements are silent as to any age
requirement.
Employment & Discipline
TERMINATION FOR FRATERNIZATION UPHELD
Bautista v. Los Angeles County, 10 S.O.S. 6749 (Profiled in Police Magazine 12/07/10). The
Los Angeles County Sheriff's Department did not violate a deputy's First Amendment rights,
when the agency fired him for maintaining a personal relationship with a known prostitute and
heroin user, a district appellate court has ruled. Deputy Emir Bautista was terminated in 2004,
after his relationship with Shawn Crook became known to the department. Bautista had not
reported the relationship to his superiors, reports the Metropolitan News-Enterprise. Department
policy requires officers to seek permission before associating with anyone under criminal
investigation or indictment, or "who have an open and notorious reputation in the community for
criminal activity, where such association would be detrimental to the image of the Department."
Bautista sued in 2006 to reverse a decision of the Los Angeles County Civil Service Commission
approving his discharge. Los Angeles Superior Court Judge Dzintra Janavs, since retired, denied
the request, reasoning that the prohibited-association policy was rationally related to a legitimate
purpose and therefore constitutional. On appeal, Bautista argued that Janavs should have applied
heightened scrutiny to the policy because it infringed his fundamental right of marriage and
similar intimate association, but Perluss said rational basis review was appropriate where the
policy only "incidentally" affected those rights. The justice conceded that Bautista’s involvement
with Crook was "admirable" insofar as it encouraged her to abandon prostitution and recover
from heroin addiction. However, he wrote, crediting Martinez’s testimony about the effect of
Bautista’s relationship on the department, the decision "was not without costs." Perluss also
rebuffed Bautista’s argument that the penalty was excessive, pointing out that the department’s
disciplinary guidelines expressly mentioned discharge as the appropriate punishment.
First Amendment
MINNESOTA STRIKES DOWN STATUTE
THAT PROHIBITS LYING ABOUT POLICE MISCONDUCT
Minnesota v. Crawley, 789 N.W.2d 899 (Minn. Ct. of App. 2010). Statute that criminalized
knowingly making false statements that allege police misconduct, but did not criminalize
knowingly making false statements to absolve police of wrongdoing, violated the First
Amendment's prohibition against viewpoint discrimination; and statute did not fall within
exceptions to prohibition against viewpoint or content discrimination within proscribable
categories of speech. Crawley filed a complaint on a Winona officer claiming the officer forged
her signature on a medical release to obtain her medical records. During the investigation, a
nurse said she saw Crawley sign the release. Crawley was charged and convicted of making a
false statement regarding police misconduct, but the Court held the statute unconstitutional.
Juveniles
JUVENILES HAVE RIGHT TO HAVE ARREST WARRANT SERVED
WITHOUT UNREASONABLE DELAY, DESPITE THE LACK OF A STATUTE
IN THE JUVENILE OFFENDER CODE SAYING SO
In the Matter of P.R.G., ___ Kan.App.2d ___, ___ P.3d ____ (No. 104025, filed 12/10/10). The
common-law rule given to us in In re Clyne, 52 Kan. 441, 35 Pac. 23 (1893), that a warrant needs
to be timely served is applicable in proceedings under the KJJC. Failure to timely serve a
warrant means that late prosecution violates the statute of limitations.
Miscellaneous
PORTION OF HEALTH CARE LAW STRUCK DOWN
Virginia v. Sebilius, ___ F.Supp.2d ___ (U.S.D.C. Va, No. 3:10CV188-HEH, filed 12/13/10).
Minimum essential coverage provision of Obamacare violates the constitution because it exceeds
Congress's power under the commerce clause.
Search and Seizure
CALIFORNIA COURTS JOIN GROWING LIST OF
COURTS ALLOWING SEARCH OF CELL PHONES
INCIDENT TO ARREST
People v. Diaz, ___ P.3d ___ (Cal. S. Ct. No. S166600, filed 1/3/11). The Fourth Amendment to
the United States Constitution permits law enforcement officers, approximately 90 minutes after
lawfully arresting a suspect and transporting him to a detention facility, to conduct a warrantless
search of the text message folder of a cell phone they take from his person after the arrest. Such
a search is valid as being incident to a lawful custodial arrest. California police arrested Diaz for
selling drugs to an informant. Diaz denied it. Officers looked at his text messages, and found a
message on his cell phone stating, "6 4 80." Based on his training and experience, the officer
interpreted the message to mean "[s]ix pills of Ecstasy for $80." Within minutes of discovering
the message (and less than 30 minutes after the cell phone's discovery), the officer showed Diaz
the message, who then admitted participating in the sale of Ecstasy.
REASONABLE TO SEIZE SOMEONE, INADVERTENTLY,
IN THE INTERESTS OF OFFICER SAFETY
State v. Riess, ___ Kan.App.2d ___, ___ P.3d ____ (No. 102071, filed 12/17/10). A person
inadvertently stopped is seized within the meaning of the Fourth Amendment, but doing so was
reasonable in this case based on officer safety considerations. The officer did not intend to pull
Reiss' truck over; the officer wanted only to stop the truck in front of Reiss, which had no lights
on in the middle of the night. Reiss got out and angrily walked toward the officer's car,
demanding to know what he did wrong.. The officer ordered him back to his truck. Later, the
officer approached, asked Riess why he had gotten out of his truck, and asked for his ID. While
doing so, the officer noticed the odor of an alcoholic beverage and Riess was eventually arrested
for DUI. The court held the stop of Riess and asking for his ID was justified under the
circumstances. "We conclude that the balance of these interests weighs strongly in favor of
officer safety; the officer's actions were reasonable and thus did not violate the Fourth
Amendment. As the Court noted in Brendlin with respect to passengers, "It is . . . reasonable for
passengers to expect that a police officer at the scene of a crime, arrest, or investigation will not
let people move around in ways that could jeopardize his safety." 551 U.S. at 258. On the facts
of Reiss' case, he was in the same position as a passenger who has been stopped along with a
driver but with no reasonable suspicion of wrongdoing by the passenger." See also United States
v. Al Nasser, 555 F.3d 722, 725-32 (9th Cir. 2009). Later, the Court stated, " When Ritter
approached Reiss' truck, Ritter asked why Reiss had gotten out of his truck and for identification
rather than simply telling Reiss he was free to leave. On these facts, however, we see nothing
unreasonable about that. Given the aggressive approach Reiss had taken at the scene, Ritter was
properly concerned about his safety and asking for identification in this circumstance was itself
only a minimal intrusion."
911 DISCONNECT AND LACK OF RESPONSE AT AN OPEN FRONT
DOOR JUSTIFIES ENTRY UNDER THE EMERGENCY EXCEPTION
Johnson v. City of Memphis, 617 F.3d 864 (6th Cir. 2010). A 911 hang-up call and officers not
getting any response to announcement at the open front door were sufficient to establish the
emergency exception to the Fourth Amendment warrant requirement. The first officer on scene
found the front door wide open and announced that the police were present. He received no
response, so entered with his weapon drawn. Backup arrived and did the same. At some point
after the officers entered, a second call came in to dispatch with sufficient information to classify
the call as a "mental consumer." When officers encountered Mr. Johnson, he went beserk and
officers eventually shot and killed him. The district court granted the officers summary
judgment. The Sixth Circuit affirmed. Plaintiff argued that the 911 call did not convey sufficient
information to establish the exception, but the court rejected the argument, stating:
9-1-1 hang-up calls do convey information. They do not convey certainties, but
certainties are not required. 9-1-1 hang-ups inform the police that someone
physically dialed 9-1-1, the dedicated emergency number, and either hung up or
was disconnected before he or she could speak to the operator. An unanswered
return call gives further information pointing to a probability, perhaps a high
probability, that after the initial call was placed the caller or the phone has
somehow been incapacitated. In some percentage of cases involving this set of
facts, a person is in need of emergency assistance. Because the "ultimate
touchstone" of the Fourth Amendment is reasonableness, certainty is not required.
Johnson, 617 F.3d at 871.
VOLUNTEERING TO COMMUNICATE WITH OFFICERS, FOLLOWED BY
DISCOVERY OF A WARRANT JUSTIFIED SEIZURE
State v. Moralez, ___ Kan.App.2d ___, ___ P.3d ____ (No. 102342, filed 11/24/10). Topeka
bicycle cops Whisman and Hilt saw a car in an apartment parking lot at 2:45 a.m. with its lights
on. They went to investigate, and noticed the vehicle had expired tags. Moralez came out on an
apartment balcony and tried communicating with the officers, but each were having trouble
hearing. Moralez came downstairs and officers started asking about the car. Moralez said it
belonged to a female named Legate who was in his apartment, and he offered to go get her.
Officers asked him to stay. Eventually, Legate came down to visit with the officers. One of the
officers requested ID from both persons, and Moralez not only came back with a warrant, but had
drugs on his person. The Court of Appeals held that even if Moralez was illegally detained,
discovery of the warrant justified the arrest and subsequent search based on State v. Martin, 285
Kan. 994, 179 P.3d 457, cert. denied ___ U.S. ___, 129 S. Ct. 192 (2008)(taint of illegal
detention attenuated by rapid discovery of an arrest warrant). Atcheson, J., dissents, saying the
majority fails to correctly apply the attenuated taint analysis, and even if it did, it is bad law. He
calls the act of asking for ID without reasonable suspicion, "A Fourth Amendment violation,
plain and simple."
GOOD FAITH EXCEPTION APPLIED TO SEARCH OF A CAR INCIDENT
TO ARREST POST-GANT.
State v. Daniel, ___ Kan. ___, ___ P.3d ___ (No. 101622, filed 11/19/10). An officer stopped
Daniel based on his knowledge her driver's license was suspended, and after arresting her,
searched her car incident to arrest. In a purse he found methadone. Daniel argued that Leon
should not apply to K.S.A. 22-2501(c) after Gant. "[W]e hold prior precedent compels
recognizing a good-faith exception when it can be determined the officer conducting the search
incident to arrest was acting in objectively reasonable reliance on K.S.A. 22-2501(c). This
exception is applicable for searches occurring before Gant was decided on April 21, 2009. The
exclusionary rule does not apply to evidence obtained by police who acted in objectively
reasonable reliance upon K.S.A. 22-2501(c) prior to the United States Supreme Court's decision
in Arizona v. Gant, __ 56 U.S. __, 173 L. Ed. 2d 485, 129 S. Ct. 1710 (2009). Johnson dissents.
PAT-DOWN SOLELY FOR "OFFICER SAFETY" IS NOT GOOD ENOUGH
State v. White, ___ Kan.App.2d ___, ___ P.3d ____ (No. 103472 filed 11/12/10). A study in
how not to do a car stop, pat-down and consent search. A KCK police officer saw the defendant
in his vehicle at a stop light with his blinker on. When the light changed, defendant went straight
instead of turning. The officer stopped the car. After initial pleasantries, the officer got consent
to search the vehicle. No contraband was found. However, the back up officer patted-down the
defendant after he got out of the car and found marijuana in the defendant's waist band. His
justification for doing so was "officer safety," and he said he routinely performs a pat-down any
time he has someone get out of a car. The Court held the detention exceeded the scope and
duration of a normal traffic stop and there was no evidence the initial detention turned back into
a voluntary encounter. Further, without any justification for the pat-down, the evidence should
have been suppressed.

--

JJK
CH # 1149
from somewhere in the Midwest

jknoll4@cox.net

Your source for Calvin's 2.0 and New Mexico chile seeds: http://www.midwestchileheads.com



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