Archive for the ‘Drugs’ Category

Decision: State v. Leshay

September 1, 2009

August 28th. The Kansas Supreme Court has issued its opinion in State v. Leshay (No. 99,725), an appeal of a dismissal of drug charges in District Court. In a unanimous decision, written by Justice Lee Johnson, the Court held that the Sixth Amendment Right to Confront one’s accusers does not apply at a Preliminary Hearing to a forensic lab report, where Kansas law does not require a lab technician to testify. Note: Court of Appeals Judge Christel Marquardt served on this case, in place of former Chief Justice Kay MacFarland.

Wendell Leshay was accused of possessing Cocaine. After a Preliminary Hearing following his indictment, he moved to dismiss the charges against him on the grounds that the Kansas Bureau of Investigation (KBI) lab technician who had prepared the forensic evidence did not appear for cross-examination at the hearing. The District Court agreed, holding that the United States Supreme Court’s decision in Crawford v. Washington (2004) meant that the Confrontation Clause of the Sixth Amendment required that the technician be present.

The State appealed and the Kansas Supreme Court reversed the decision of the District Court. The court noted the U.S. Supreme Court decision in Melendez-Diaz v. Massachusetts (2009), which made it clear that the confrontation clause applies to forensic evidence reports, but ultimately held that the Sixth Amendment Confrontation Clause does not apply at a Preliminary Hearing, rather it applies at trial. The Preliminary Hearing is a statutory creation, and therefore there is not a Constitutional obligation to allow confrontation regarding testimonial evidence introduced there.

The Court did note that there might be a Due Process argument about the inability to confront an accuser at a Preliminary Hearing. However, Leshay had not raised this argument in the District Court and therefore it was not available within the appeal.

The District Court’s dismissal of the charges was reversed and the charges reinstated. The case was then remanded back to the District Court to proceed.


Decision: State v. Schultz

August 13, 2009

July 24th. The Kansas Supreme Court has issued its opinion in State v. Schultz (No. 98,727) a state appeal against the suppression of physical evidence following a failure to deliver Miranda warnings to an alleged Topeka drug dealer. In a unanimous opinion, written by Justice Carol Beier, the Court held that the District Court should not have suppressed physical evidence discovered in a consensual search that followed an un-Mirandized custodial interrogation. Note: Judge Christel Marquardt of the Court of Appeals took part in this decision in place of Justice Rosen.

Ryan Schultz was in his rented apartment with his juvenile girlfriend smoking pot when a pest control worker noticed the marijuana and reported this fact to the apartment manager. She called the Topeka P.D. Two police officers arrived at the scene and knocked on Schultz’ door. Schultz allowed them in, initially to stand by the door. They spotted the marijuana on the table and noticed the smell of it in the air and began to question him. Throughout the interrogation no Miranda warnings were given. The girl asked to leave but the Police told her she could not. After implying that they would easily get a search warrant Schultz agreed to the apartment being searched. Large quantities of pot were discovered and he was arrested, taken downtown and Mirandized. [During these proceedings a written consent to search was taken from him as well].

Schultz was charged with dealing in marijuana. At trial the District Judge ruled that the interrogation in the apartment was a custodial one (i.e. one which while not in the police department was the functional equivalent of such an interview) and since no Miranda warnings were given suppressed the evidence of it. The Judge also suppressed all physical evidence gathered from the scene. The Court of Appeals upheld the District Court’s ruling and the State appealed to the Kansas Supreme Court.

In its decision, the Kansas Supreme Court affirmed the suppression of the un-Mirandized statements, finding that the interview in the apartment met all the characteristics necessary to be covered under Miranda. However, the Court reversed the suppression of the physical evidence, citing and quoting extensively from the United States Supreme Court’s decision in United States v. Patane. In that case the U.S. Supreme Court held  that physical evidence gathered after a defendant went un-Mirandized was not subject to an exclusionary rule, provided that police coercion was not involved. Rather, the exclusionary rule only applied to the statements which if introduced at trial would violate the right against self-incrimination. Since the search of Schultz’ apartment was a valid and consensual one, the mere fact that it happened after a botched interview process did not mean that the evidence should be excluded.

The District Court’s suppression ruling was therefore vacated as far as the physical evidence was concerned and the case remanded for further proceedings.

Analysis: United States v. Patane was a late Rehnquist era decision, handed down in June 2004. It was a plurality opinion, with Chief Justice Rehnquist and Justices Scalia and Thomas joined in the result by Justices  O’Connor and Kennedy and the four liberals in dissent. Justice Thomas wrote the main opinion. With several personnel changes on that Court since then, this case may be a candidate for a further appeal.

Decision: State v. Henning

July 9, 2009

June 26th. The Kansas Supreme Court has issued its decision in State v. Henning (No. 98,118) a Fourth Amendment unreasonable search case. In a unanimous opinion, written by Justice Carol Beier, the Court held that the Kansas Law which allowed police to search vehicles of arrestees for evidence related to ‘a’ crime is unconstitutional. In doing so it applied the recent United States Supreme Court decision of Arizona v. Gant.

Randy Henning had a warrant out for his arrest. Lyon County Deputy Sheriff Patrick Stevenson noticed him and arrested him when he went to his car. After the arrest, Stevenson searched the car and found drug paraphernalia. Henning and Kelly Zabriskie (who had been in the driving seat of the car) were arrested for possession. Defence Counsel moved to suppress the drug evidence, but its presence was upheld.

Kansas Law had previously stated that in a search incident to arrest one of the reasons for searching the area immediately surrounding the arrestee would be ‘Discovering the fruits, instrumentalities, or evidence of the crime’. In a 1996 decision, the Kansas Supreme Court had held in State v. Anderson, that the word ‘the’ in that sentence meant that the State could not introduce evidence that was found that was unrelated to the crime that was the reason for the search. In 2006 the Legislature reworded the law to use the word ‘a’ instead of ‘the’.

The Kansas Supreme Court held that this change had the effect of altering the Statute so that the police would be authorized to search for evidence of any crime. This law had taken effect five days before Stevenson searched the car.

The Court then analyzed the law under the 2009 U.S. Supreme Court decision Arizona v. Gant. In that case that Court held that police may search the passenger compartment of a vehicle incident to a recent occupant’s arrest only if it is reasonable to believe that the arrestee might access the vehicle at the time of the search or that the vehicle contains evidence of the offense of arrest. Applying Gant to this case, meant that the Court concluded that the statute was unconstitutional since it authorized searches outside of those narrow limits.

Opinion: While we believe the decision in this case was correct, in ruling this way the Court delved into legislative history to prove what the Legislature intended to do when it replaced ‘the’ with ‘a’. This strikes us as unnecessary as contrary to the Court’s opinion, the Legislature’s intent was apparent from the plain words of the change. We will therefore watch for the circumstances in which this case is cited supporting the use of legislative history.

Decision: State v. Bee

May 25, 2009

May 22nd. The Kansas Supreme Court has issued its opinion in State v. Bee (No. 97,677),  a drug-related probation revocation appeal. In a unanimous opinion, written by Justice Eric Rosen, the Court held that Larry Bee was properly sentenced to his underlying prison sentence when his probation was revoked. Bee had argued that the District Court should have considered sending him to a non-prison alternative such as the Labette Correctional Conservation Camp.

In July 2003, Bee was charged with several felonies relating to possession of methamphetamine and marijuana. As part of a plea agreement all of these but one were dismissed and Bee was sentenced in May 2004 to 13 months imprisonment, suspended due ot probation. A month later, the State filed a motion to revoke Bee’s probation since he had not shown up to meetings with his probation officer and had again been found to be using meth. The Court’s opinion is silent on what happened here, but two years later the State again filed a motion to revoke Bee’s probation on the grounds that he did not show up and continued to use drugs.

The District Court revoked Bee’s probation and sentenced him to gaol. Bee argued that instead of this the court should have considered sending him to the Labette Correctional Camp or another non-prison alternative. His argument was based on a statute which states that for defendants falling into the position on the sentencing grid that Bee did, the District Court shall do this prior to sending a revoked probationer to prison.

However, there are other statutes which also govern the revocation of probation which require that certain classes of drug offenders be sent to prison on revocation of their probation. The Kansas Supreme Court analyzed these and based upon the fact that some were enacted after the Labette statute and that they also contain the word ‘shall’ found that they controlled the outcome in this case. Bee was therefore properly sentenced to prison.

The State did not win every part of its argument. The Labette statute identified two classes of individual who should be considered – those whose offences did not fall under a particular other statute and those whose criminal history meant that they would receive probation. Bee’s crimes were among those which were specifically excluded from the first part of the Labette statute, but his criminal history brought him into the second part. The State had argued that the former meant that the entire matter did not apply. The Court disagreed, finding that because the legislature used the word ‘or’ between these two sections Bee’s disqualification from the former did not prevent the application of the latter. Rather, it was the other statutes which meant that he was properly imprisoned.

Decision: State v. Valladarez

May 9, 2009

May 8th. The Kansas Supreme Court has issued its opinion in State v. Valladarez (No 99,724). In a unanimous decision, written by Justice Marla Luckert, the Court held that a District Magistrate Judge can perform a felony arraignment, including informing the defendant of the implications of a guilty plea, provided that Magistrates in that District have been assigned this power by the Chief Judge of the District. In this case, there being no evidence either way about this assignment the case was remanded to the District Court to ascertain if the assignment of this authority had been properly made.

In 2007 Aaron Valladarez was charged in Ford County with sale of methamphetamine and possession of methamphetamine. At a preliminary hearing before a District Magistrate Judge the State offered a deal: plead guilty or nolo contendere to the charges and the sale of meth one would be replaced with a second possession charge (possession being a lesser felony). Valladarez accepted the deal and the Magistrate converted the hearing into an arraignment. Valladarez pled no contest and subsequently at a District Court sentencing hearing was given two concurrent 28 month sentences.

Valladarez appealed citing two conflicting aspects of Kansas Law governing Magistrates and arraignments, as well as longstanding precedents from the 1970s and earlier. The old cases and a general statute block Magistrates from presiding over most felony arraignments. However, another statute gives them the right to do so if the Chief Judge of the Judicial District has authorized them to. Generally, when two statutes conflict the more specific one is controlling, but the Court is to read them in such a way as to harmonize them. In this case, what happened was that in the 1990s the Legislature amended the law to allow Magistrates to handle arraignments for efficiency reasons. Therefore the Court rejected the notion that the Magistrate was not permitted to arraign Valladarez.

As a second argument, Valladarez also argued that even if the Magistrates could preside over an arraignment, they could not have been granted the authority to preside over the process of accepting a guilty (or no contest) plea since this requires a judgement as to whether the plea was acceptable. Valladarez argued that this was the realm of the District Judge. The Court also rejected this argument, noting that while the law did not specify one way or the other, the process of arraignment contained the process of accepting a plea and to allow a delay between the defendant entering a plea and the Court acting upon whether that plea was a valid one would actually harm the defendant’s Due Process rights.

Procedurally this case is somewhat odd. Generally appellate claims may only be raised if the matter they cover was raised in District Court, however if the claim concerns the jurisdiction of the Court that heard the case the claim can be raised at any point. (This is based on the idea that jurisdiction is an absolute – either it exists or it does not and there is nothing a party to a case can do to create or destroy it). For this reason the Kansas Supreme Court heard this case. However, the Statute which the Court relied on to reject Valladarez’ claims required some form of official decision within the Judicial District that would enable Magistrates to handle arraignments. There was no evidence in the case record that this had happened, so the case was remanded back to the District Court to determine whether this had in fact been done. The District Court was instructed that if it had been done then Valladarez’ felony convictions will stand, but that if it had not been done they will not. The opinion also made a point to put Chief Judges on notice to ensure that if this procedure was in use in their District to ensure that their administrative orders properly covered this process.

The Court also heard a claim from Valladarez that since the sentencing Judge had omitted to ask him a question about whether he had any reason to believe that he could not be sentenced, his sentence was invalid. The Court found that this check is required by law, and that the Judge had erred in not asking it. However the Court also found that the error was harmless: Valladarez would have received the same sentence anyway.

Decision: State v. Youngblood

May 9, 2009

May 8th. The Kansas Supreme Court has issued its opinion in State v. Youngblood (No. 96,850). In a unanimous decision, written by Justice Johnson, the Court vacated the conviction of Galen Youngblood for felony possession of marijuana. The case implicates the Sixth Amendment right to counsel and the use of convictions obtained without counsel for subsequent sentencing enhancements.

Galen Youngblood was detained on a driving on a suspended license charge in 2004. He was caught disposing of a marijuana pipe and was therefore charged with possession of marijuana. A first offense is a misdemeanor but a second offense can be charged as a felony. Since Youngblood had a prior misdemeanor conviction from Newton Municipal Court for the same offense, he was charged with a felony.

The Sixth Amendment the Right to Counsel attaches to misdemeanors that result in a prison sentence. This offense was one such misdemeanor, although in Youngblood’s case he had received a suspended sentence with probation. Youngblood filed a motion to dismiss the charges on the grounds that his prior conviction had occurred without counsel. The waiver of counsel document from his trial was blank and although the State could show that he had subsequently signed a waiver (after the fact) there was not evidence that he had knowingly waived his right. The District Court also heard evidence from the original judge who could not independently verify that he had spoken with Youngblood about his waiving his right, but who said that he always spoke to defendants about this.

The District Court ruled against Youngblood and held that since he had not been jailed on prior occasion the Sixth Amendment did not apply. Youngblood was convicted and sentenced (the Court does not specify the length of his sentence). Youngblood appealed. The Court of Appeals upheld his conviction, ruling that although he had been denied his Right to Counsel in the prior conviction (since the onus is upon the State to prove that he had knowingly waived it) it was still valid for its use here.

The heart of the case comes down to the way various Federal Caselaw has been applied in Kansas. The United States Supreme Court held in a case in the 1970s that the test as to whether the Sixth Amendement applied to a misdemeanor was imprisonment. In 1994 the U.S. Supreme Court held that a prior uncounselled misdemeanor conviction could be used to enhance a subsequent sentence if the State could show that the defendant had waived his right to counsel. Therefore in State v. Delacruz (1995) the Kansas Supreme Court held that the same rule applied in Kansas. Subsequently, in Alabama v. Shelton (2002) the U.S. Supreme Court held that even a suspended sentence that does not result in jail time is covered by this Sixth Amendment rule.

The Court of Appeals had held that Delacruz was compatible with Shelton and had therefore held that the prior conviction could be used to enhance the new charge. The Kansas Supreme Court reversed the Court of Appeals, ruling that this case is different to Delacruz in any case because the Delacruz rule allows a validly obtained uncounselled conviction to be used. Since Youngblood had received a suspended sentence, under Shelton, the Sixth Amendment did apply and therefore his original conviction was not constitutionally valid. Therefore it could not be used to enhance his present charge to a felony.

Decision: State v. Thompson

December 16, 2008

December 5th. The Kansas Supreme Court has issued its decision in State v. Thompson, No. 94,254, the court issued a unanimous opinion, authored by Justice Luckert. The case concerned Dennis Thompson, who was convicted of a number of felonies for operating a meth lab in his garage. The case has been bobbing up and down between the District Court, court of Appeals and Supreme Court for the past three years, and involves the way different anti-drug statutes interact. The court makes three rulings of legal significance, though none are surprising based on the direction of its jurisprudence.

  • That Thompson’s convictions for possession of lithium and possession of pseudoephedrine under the ‘possession of drug paraphenalia with intent to manufacture’ amounted to two counts of the same offence (since both components are required for the process that is criminalized) and thus violate Double Jeopardy. The conviction for the lithium is therefore set aside.
  • That ‘possession of pseudoephedrine with intent to manufacture methamphetamine’ (a level 1 felony) is substantially the same as ‘possession of drug paraphenalia with intent to manufacture’ (a level 4 felony). Thompson’s conviction for the former is therefore set aside so that he be resentenced to the lesser offence.
  • That ‘manufacture of methamphetamine’ (a level 1 felony) is not the same as ‘use of drug paraphernalia with intent to manufacture’ (a level 4 felony) and that that part of Thompson’s sentence therefore stands.

In arriving at these conclusions the court clarified its Double Jeopardy and Identical Offense rules and tests. Kansas’ Identical Offense doctrine is a firm part of the legal landscape – perhaps when the legislature returns to session next month lawmakers can spend some time tidying up the mess of overlapping statutes before they craft any new ones. In a time of budget crisis doing so would save on the legal fees created by the seemingly endless stream of these cases.


January 28th. The Kansas Supreme Court modified its opinion in this case to remand Thompson’s case to the Court of Appeals to determine if he should receive a lighter sentence for manufacture of methamphetamine. The revised opinion is here.

Decision: State v. Boggs

December 16, 2008

December 5th. The Kansas Supreme Court has issued its decision in State v. Boggs, No. 96,921, the Court agreed with the Court of Appeals and ordered a new trial for one Charles Boggs of McPherson. Boggs had been convicted of possession of marijuana and possession of drug paraphernalia after a pipe was found under the seat of a car he had been a passenger in following a DUI stop. Justice Davis wrote the unanimous opinion.

In throwing out the conviction, the Supreme Court affirmed its Gundy decision from 2006 that evidence of other criminal activity (in this case Boggs’ confession that he had smoked pot about a month earlier) is inadmissible except where used to prove a material fact under dispute (such as whether a person found in possession of a prohibited substance knew it was there and therefore intended to carry it). In this case Boggs was asserting that the pipe was not his and that he had no knowledge of it. The Court therefore determined that his intent was irrelevant and therefore his admission to being a drug user had no bearing on the State’s burden to prove that the pipe was his.

The Court further clarified that its Gundy ruling impacts all relevant cases in the State of Kansas that have not reached their natural end-point (i.e. where a conviction has resulted, an appeal held or waived and the time for any final appeal or rehearing has ended). The State had sought to argue that since Boggs was convicted before the Gundy decision that that precedent was not applicable to this case.

Finally, the Court also overturned (but did not vacate) some unpublished Court of Appeals rulings which appeared to contradict its decision and disapproved some pattern instructions for jury trials which summarized the relevant case law in contradiction to its decision.