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Kansas Law Review Criminal Procedure Survey*

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Kansas Law Review Criminal Procedure Survey* WORKING DRAFT Kansas Law Review Criminal Procedure Survey* I. INTRODUCTION The Criminal Procedure Survey was compiled by staff members of the Kansas Law Review and is intended to provide a snapshot of changes in criminal law over the past year. This Survey examines the evolution of Kansas criminal law and criminal procedure using cases from the Kansas Supreme Court and Kansas Court of Appeals, along with decisions from the Tenth Circuit Court of Appeals and the Supreme Court. Changes in the Kansas Statutes are also provided. We intend this Survey to serve as a resource to inform practitioners and judges on the development of the law and its current status. II. SEARCHES AND THE FOURTH AMENDMENT A. Scope of the Fourth Amendment The Fourth Amendment of the United States Constitution provides: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches . shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.1 Likewise, the Kansas Constitution’s Bill of Rights provides similar protection: “The right of the people to be secure in their persons and property against unreasonable searches and seizures, shall be inviolate . .”2 Indeed, this provision in the Kansas Bill of Rights provides the same guarantee as does the Fourth Amendment to the United States Constitution.3 Thus, with the application of the Fourth Amendment to the states through the Fourteenth Amendment, as well as similar * This survey was compiled and edited by the staff memebers and the Executive Note and Comment Editor Whitney Novak. This Survey may be cited as: 62 U. KAN. L. REV. 1461 (2014). 1. U.S. CONST. amend. IV. 2. KAN. CONST. bill of rights § 15. 3. State v. Jefferson, 310 P.3d 331, 337 (Kan. 2013). 1461 1462 KANSAS LAW REVIEW [Vol. 62 guarantees provided in the Kansas Bill of Rights, Kansas courts are bound by United States Supreme Court precedent regarding questions involving the Fourth Amendment.4 1. Government Action Requirement The Fourth Amendment protections against unreasonable searches apply only when there is state action.5 The Fourth Amendment does not apply to any search—no matter how unreasonable—that is conducted by a private citizen who is “not acting as an agent of the Government or with the participation or knowledge of any government official.”6 Here, it is important to reiterate the fact that a private citizen may be deemed a government actor—”[I]n some cases a search by a private citizen may be transformed into a governmental search implicating the Fourth Amendment if the government coerces, dominates or directs the actions of [the] private person conducting the search or seizure.”7 The Tenth Circuit uses a two-pronged test to determine when a search conducted by a private actor constitutes state action thus invoking the protections of the Fourth Amendment. First, it must be determined “whether the government knew of and acquiesced in the [individual’s] intrusive conduct.”8 Second, it must be determined that the private actor conducting the search “intended to assist law enforcement efforts” and was not acting merely to further his or her own ends.9 Both of these prongs, according to the Tenth Circuit, “must be satisfied considering the totality of the circumstances before [a] seemingly private search may be deemed a government search.”10 Similarly, the Kansas Supreme Court has held that the Fourth Amendment applies to any private actor who is acting as an agent of the government, i.e. “under the authority or direction” of the government.11 4. State v. Henning, 209 P.3d 711, 718 (Kan. 2009). 5. United States v. Jacobsen, 466 U.S. 109, 113 (1984); United States v. Smith, 810 F.2d 996, 997 (10th Cir. 1987); United States v. Poe 556 F.3d 1113, 1123 (10th Cir. 2009); State v. Smith, 763 P.2d 632, 634 (Kan. 1988). 6. Jacobsen, 466 U.S. at 113 (quoting Walter v. United States, 447 U.S. 649, 662 (1980) (Blackmun, J., dissenting)). See also Poe, 556 F.3d at 1123; State v. Brittingham, 294 P.3d 263, 267 (Kan. 2013) (citing Smith, 763 P.2d 634). 7. Poe, 556 F.3d at 1123 (quoting United States v. Smythe, 84 F.3d 1240, 1242 (10th Cir. 1996)). 8. Id. (quoting United States v. Souza, 223 F.3d 1197, 1201 (10th Cir. 2000)). 9. Id. 10. Id. 11. Brittingham, 294 P.3d at 267 (quoting Smith, 763 P.3d at 638 (Kan. 1988)). 2014] KANSAS CRIMINAL PROCEDURE SURVEY 1463 Apart from private actors, the Kansas Supreme Court recently reiterated in State v. Brittingham that, at the time of the search, a government employee is not necessarily a “government actor” for purposes of the Fourth Amendment, “especially under circumstances where the government employee is not acting within the scope of his or her employment.”12 Moreover, the court noted in Brittingham: [There is no] bright-line rule that equates a government employee with a constitutionally constrained government actor any time the employee is performing any activity within the scope of his or her employment. In other words, the applicability of constitutional restraint is not driven solely by a government employee’s job description. Rather, to be a constitutionally constrained government actor, the government employee must be performing an investigatory-type activity for the benefit of his or her employer. The restrained activity will normally be exploratory, rather than reactive, in nature.13 2. Reasonableness Requirement Whether a search is “reasonable” is the principal question in a Fourth Amendment challenge—reasonableness being “the ultimate measure of the constitutionality of a governmental search . .”14 The reasonableness test cannot be precisely defined and a court must examine reasonability on a case-by-case basis.15 With that being said, determining whether a particular search is reasonable requires that a court “weigh ‘the promotion of legitimate governmental interests’ against ‘the degree to which [the search] intrudes upon an individual’s privacy.’”16 In addition to this balancing of government and individual interests, a court should also view all the facts and circumstances surrounding the search—i.e. the totality of the circumstances—when determining whether the search was reasonable.17 The Tenth Circuit recently provided that “[t]he Fourth Amendment requires us to evaluate the reasonableness of searches . based on the facts known to officers 12. Id. at 269. 13. Id. 14. Maryland v. King, 133 S.Ct. 1958, 1969 (2013) (quoting Vernonia School Dist. 47J v. Acton, 515 U.S. 646, 652 (1995)). See also State v. Spagnola, 289 P.3d 68, 74 (Kan. 2012) (noting that “reasonableness is the touchstone of the Fourth Amendment). 15. Pool v. McKune, 987 P.2d 1073, 1078 (Kan. 1999) (citing Delaware v. Prouse, 440 U.S. 648, 654 (1979)). 16. King, 133 S.Ct. at 1970 (quoting Wyoming v. Houghton, 526 U.S. 295, 300 (1999)). 17. State v. Beltran, 300 P.3d 92, 102 (Kan. Ct. App. 2013) (citing Skinner v. Ry. Labor Execs’ Assn., 489 U.S. 602, 619 (1989)). 1464 KANSAS LAW REVIEW [Vol. 62 when the event in question occurred, and to avoid as best we can the temptation of offering critiques with the ‘20/20 vision of hindsight.’”18 When examining the totality of the circumstances surrounding the search, the subjective intent of the government actor conducting the search is irrelevant—what matters is the “objective effect” of the officer’s actions.19 3. “Search” Defined Today there are two standards used to determine when a search has occurred for Fourth Amendment purposes. Traditionally, a search occurs when there is a physical trespass.20 That is, when the government obtains information regarding an individual’s person, house, papers, or effects through any physical intrusion, a search has occurred for Fourth Amendment purposes.21 A physical trespass, however, does not necessarily have to occur for there to be a search because “the Fourth Amendment protects people, not places.”22 With that being said, a search may also occur when the government intrudes on an individual’s “actual (subjective) expectation of privacy,” and the individual’s expectation is one “society is prepared to recognize as ‘reasonable.’”23 In our technologically advanced society, this seminal test has come to dominate modern constitutional jurisprudence concerning when a search has occurred for Fourth Amendment purposes. Though there have been questions as to whether this “reasonable expectation of privacy” test should replace the older trespass test, today the “reasonable expectation of privacy” test continues to be in addition to—not in substitution for— the older trespass test.24 As the Supreme Court recently held in United States v. Jones, [F]or most of our history the Fourth Amendment was understood to embody a particular concern for government trespass upon the areas (“persons, houses, papers, and effects”) it enumerates. Katz did not repudiate that understanding . [T]he Katz reasonable-expectation- 18. United States v. Harris, 735 F.3d 1187, 1191 (10th Cir. 2013) (quoting Graham v. Connor, 490 U.S. 386, 396 (1989)). 19. United States v. Madrid, 713 F.3d 1251 (10th Cir. 2013); State v. Beltran, 48 Kan. App. 2d 857, 879 (Kan. Ct. App. 2013) (quoting Bond v. United States, 529 U.S. 334, 338 (2000)). 20. United States v. Jones, 132 S.Ct. 945, 951–52 (2012). 21. Id. at 950–51. 22. Katz v. United States, 389 U.S. 347, 351 (1967). 23. Id. at 361 (Harlan, J., concurring). 24. Jones, 132 S. Ct. at 950–52. 2014] KANSAS CRIMINAL PROCEDURE SURVEY 1465 of-privacy test has been added to, not substituted for, the common-law trespassory test.25 B.
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