Forfeiture (presumably) denied

The Kansas Court of Appeals and Supreme Court typically releases new decisions every Friday morning. This week, we had an asset forfeiture case come before the appeals case.

The case, titled State v. One 2008 Toyota Tundra (in forfeiture cases, the assets subject to forfeiture are named as the Defendant) involved a truck, cash, and marijuana seized in a traffic stop on I-70 in Geary County. The Geary County Sheriff’s deputy pulled the Tundra over for a partially obstructed license plate. While doing the standard license, registration, and insurance check, he asked the driver and passenger about their travel plans. Based on their answer (that they were going from Ohio to Las Vegas) the deputy suspected they were running drugs. After the license check came back, the deputy requested an additional criminal check on the driver, buying him enough time to have his dog, Scooby, sniff the truck.

At this point in the opinion, justice Anthony Powell managed to insert a stealth pun:

At the 8:54 mark, what did Scooby do? Scooby indicated the presence of drugs at the truck’s rear passenger-side corner of the tailgate area.

In the forfeiture proceedings at the district court, the truck’s passenger filed a motion to suppress the stop, claiming that the stop should have ended when the registration check came back, and that the extended background check and dog sniff constituted an unreasonable search and seizure. The district court granted the motion, the state appealed, and the Court of Appeals affirmed the suppression.

Parental Advisory: Case Law

This week, the Kansas court of appeals released This opinion in the case of State v. Guein. In the majority opinion, Justice Steve Leben inserted the following caution before getting into the legal terminology:

We want the reader to know that we do recognize that some of the language in our opinion is vulgar enough that it cannot be used on over-the-air television shows. Yet we have used it in a published judicial opinion. We do so because this language carries a certain force that’s not necessarily apparent if we rephrase it. We must judge the effect of the words said — in this case by a police officer — on the person in handcuffs who heard them. To make that judgment and to explain our decision, we must repeat the actual words used and place them in the context in which they were said.

With that introduction, we turn now to the factual and procedural setting in which these issues are presented. We will then address each of the three legal issues Guein raises on appeal, only one of which is successful.

In a nutshell, two Lenexa PD officers observed what they suspected to be a purchase of illegal drugs. They approached the vehicles and were able to detect an odor of marijuana coming from them. After an initial patdown, the defendant was cuffed and given his Miranda warning. After this is when the proverbial f-bombs started dropping. The Court of Appeals ruled 2-1 that the officer’s language amounted to a verbal threat of physical harm which “Effectively Negated the Miranda Warning,” and that statements made and evidence gathered after the officer used such language must be suppressed. The court also ruled that use of the evidence in question could have affected the outcome of the case, reversed the verdict, and remanded for a new trial.

The dissenting judge, Kathryn Gardner, disagreed with the notion that the language was threatening and would affirm the trial court. Some of her arguments in her dissent were responded to in Leben’s opinion.

Voting ab initio

As a left-handed right-winger, I mostly toe the GOP line. That does not mean I blindly vote the straight ticket.

For President: I could not vote for Hillary Clinton. I could not vote for Donald Trump. Even though he’s far from perfect, I went with Gary Johnson and will leave it at that. Besides, it’s safe to say that Trump will carry Kansas no matter what I do.

For the US senate and US house, I did toe the line for Jerry Moran and Lynn Jenkins.

For State Senate, I once told incumbent Democrat Marci Francisco that the only person I would pick over her was myself – and I’m not running. I made good on what I said. In the statehouse, I went with Republican Ron Ellis. I also crossed over and voted for incumbent Ann Mah in the Board of Education race.

All of the County races are unopposed by Republicans except for one contested race. Linda Buttron will be the county clerk, Delia Heston will be Register of Deeds, Lisa Buerman will be treasurer, Jeff Herrig will be Sheriff. The only contested race for Jefferson County office is County Attorney. I went with Republican Josh Ney.

On a somewhat contentious judicial retention race, I voted to retain all judges except for one: Supreme Court justice Carol Beier. Why did I target that particular one instead of all four targeted justices? I based it on a read of a dissenting opinion in two Capital Murder case. Both cases involved defendants who where convicted, but died in prison before the automatic appeal could be heard. In many states, and at the federal level, if a defendant dies while his appeal is pending, the defendant’s charges are abated ab initio. In layman’s terms, it legally means the defendant is treated like he was never charged. That’s not the case in Kansas. In the two Capital cases, the Supreme Court reduced their review to issues that could have absolutely absolve the defendant. In one of the cases, a lesser conviction was dismissed as duplicative of the Capital Murder conviction. Beier’s dissent in the two cases indicated that she felt that Kansas should adopt abatement ab initio. She was the sole dissenter in both cases.

The doctrine of abatement ab initio seems reasonable at first glance. After all, the Defendant is no longer able to defend himself personally, nor would the state be able to punish him personally. However, the high profile case of Ken Lay showed the weakness – abating the conviction also abates victim restitution. It seems to me that, rather than adopting the concept of abatement in Kansas, other states are leaning towards getting rid of it.

December, 1995

December 1, 1995 LHS Boys’ Basketball opener against St. Thomas Aquinas:
556 557 558 559 560 561 562 563 564 565 566 567 568 569 570 571 572 573 574 574A

December 4, 1995: Girls’ Basektball v. KC Washington
575 576 577 578 579 580 581 582 583 584 585 586 587 588 589 591 592 593 594 595 596 597 598


December 14,1995: Girls’ Basektball v. Olathe East (and a fateful photo)
601 602 603 604 605 606 607 608 609 610 611 612 613 614 615

December 19, 1995: Boys’ Basketball v. Olathe North (last game before Winter Break)
616 617 618 619 619 620 621 622 623 624 625 626 627 628 629 630 631 632 633 634 635 636 637 638 640

December 23, 1995: SLT construction and a failed railfan location attempt
652A 653 654 655 656 657 658 658A 659 660 661 662 663 664 665

[Christmas Family photos snipped]

December 28, 1995: North Lawrence Railfanning
671 672 673 674 675 677 678 679 680 681 682 683 684 685 686