State v. Andrews

176 P.3d 245, 39 Kan. App. 2d 19, 2008 Kan. App. LEXIS 25
CourtCourt of Appeals of Kansas
DecidedFebruary 15, 2008
DocketNo. 96,627
StatusPublished
Cited by2 cases

This text of 176 P.3d 245 (State v. Andrews) is published on Counsel Stack Legal Research, covering Court of Appeals of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Andrews, 176 P.3d 245, 39 Kan. App. 2d 19, 2008 Kan. App. LEXIS 25 (kanctapp 2008).

Opinion

Larson, J.:

This is Joseph B. Andrews’ direct appeal of the district court order denying his motion to suppress evidence. Andrews contends the Johnson County Sheriff s Department violated Kansas’ wiretapping statutes, K.S.A. 22-2514 et seq., when it recorded and subsequently listened to his outgoing telephone calls from the Johnson County Adult Detention Center without first obtaining judicial approval for such actions.

The facts in this case are not in dispute. In March 2005, Andrews was stopped by Leawood police while driving a 1994 Chevrolet truck pulling a Jayco Eagle travel trailer. He was arrested on an outstanding Lenexa city warrant and placed in the Johnson County Adult Detention Center (hereinafter jail). Investigators learned the truck and trailer had been stolen in Missouri, resulting in Andrews being charged with two counts of felony theft in violation of K.S.A. 21-3701.

While he was in jail, Andrews made numerous telephone calls to his girlfriend, Pamela Harless, on the jail’s Evercom phone system. These conversations were recorded by the Evercom system; later, members of the Johnson County Sheriff s Department listened to the calls. During the conversations, Andrews told Harless that there were “dope” and “guns” in the trailer.

Utilizing this information, the sheriff s department obtained a search warrant for the trailer where officers discovered marijuana and a Remington 870 H shotgun. Andrews was then charged with criminal possession of a firearm in violation of K.S.A. 21-4204 and possession of marijuana in violation of K.S.A. 65-4162.

Andrews filed a motion to suppress the phone conversations and evidence derived therefrom, arguing the recordings were obtained utilizing an illegal wiretap in violation of K.S.A. 22-2514 et seq.

A hearing on the motion to suppress was held where Sergeant Michael Pfannenstiel of the Johnson County Sheriff s Department testified that Evercom had been utilized to monitor phone calls since July 2003. The primary reason for using the Evercom system is to assist in maintaining the security of the jail.

Pfannenstiel described the Evercom system in detail. He testified that the jail handbook which was available to Andrews dis[21]*21cusses the phone monitoring system and advises that calls are recorded. There are also visual warnings to the prisoners. Signs are posted with red lettering, stating: “All calls from inmate telephones are subject to monitoring recording. If you use the telephone, you are agreeing to the monitoring and recording, and if you do not agree, you may utilize U.S. mail or the inmate visitation program.”

Pfannenstiel further testified that when a prisoner institutes a call, directions are given in English or Spanish for a choice between using a jail card or making a collect call. Regardless of the choice, when the recipient of the call answers within 5 to 15 seconds, a female voice interrupts the conversation and informs both parties that the call is being recorded. The maximum time for a phone call is 15 minutes, and during that time, the voice will interrupt three to four times to again inform the parties that the call is being recorded.

Pfannenstiel said that once he learns a prisoner may be using Evercom to conduct criminal activity, he listens to the recorded conversations of that inmate. While listening to Andrews’ conversations, he heard both incriminating statements about criminal activity and statements by Andrews acknowledging the fact he knew he was being recorded.

The district court ruled that Andrews, by using the jail phones, consented to his conversations being recorded and listened to. Fair warnings were given to inmates, and there was no reasonable expectation of privacy. There was not a statutory violation in light of the valid consent. The motion to suppress was denied.

Andrews was convicted of two counts of felony theft and one count of criminal possession of a firearm at a bench trial based on stipulated facts, with the usage of the recorded conversation objection being continued, recognized, and denied. Andrews was sentenced and now timely appeals.

The single appellate issue for our consideration is Andrews’ claim that the trial court erred in denying his motion to suppress and allowing the State to use recordings of conversations which he claims is a violation of the Kansas statutes prohibiting illegal wiretapping.

[22]*22“In reviewing a district court’s decision regarding suppression, [an appellate] court reviews the factual underpinnings of the decision by a substantial competent evidence standard and the ultimate legal conclusion by a de novo standard with independent judgment. This court does not reweigh evidence, pass on the credibility of witnesses, or resolve conflicts in the evidence. [Citation omitted.]” State v. Ackward, 281 Kan. 2, 8, 128 P.3d 382 (2006).

When material facts to a trial court’s decision on a motion to suppress evidence are not in dispute, the question of whether to suppress is a question of law over which an appellate court has unlimited review. State v. Porting, 281 Kan. 320, 324, 130 P.3d 1173 (2006). In addition, because the central questions in this case concern the interpretation of a statute, appellate review is unlimited. See State v. Lewis, 263 Kan. 843, 847, 953 P.2d 1016 (1998).

The Kansas wiretapping statutes are found in K.S.A. 22-2514 et seq. Under the definition of K.S.A. 22-2514(1) and (17), the conversations of Andrews would be deemed to be an aural transfer being made by a wire communication and subject to the provisions of the Act, including K.S.A. 22-2517 which states:

“Whenever any wire . . . communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any trial, hearing or other proceeding in or before any court . . . if the disclosure of such information would be a violation of this chapter.”

In our case, the information received from the recording of Andrews’ conversations may be utilized because of the language of K.S.A. 22-2515(c) and (d), which states:

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Related

State v. Meggerson
474 P.3d 761 (Supreme Court of Kansas, 2020)
State v. Gilliland
276 P.3d 165 (Supreme Court of Kansas, 2012)

Cite This Page — Counsel Stack

Bluebook (online)
176 P.3d 245, 39 Kan. App. 2d 19, 2008 Kan. App. LEXIS 25, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-andrews-kanctapp-2008.