State v. Sodders

872 P.2d 736, 255 Kan. 79, 1994 Kan. LEXIS 66

• Court: Supreme Court of Kansas
• Decided: April 15, 1994
• Docket: 68,931
• Status: Published

Opinions

The opinion of the court was delivered by

Holmes, C.J.:

This is an interlocutory appeal by the State from a district court order suppressing evidence. The district court granted defendant’s motion to suppress the evidence, finding that the police acted outside their jurisdiction. The Kansas Court of Appeals, in a published opinion, 18 Kan. App. 2d 657, 856 P.2d 1360 (1993), affirmed the district court. This court granted the State’s petition for review.

The facts are not in dispute. On March 14, 1990, Overland Park Police Detectives Russ Gardner and Mark Meyer obtained a search warrant from Johnson County District Judge Earle D. Jones. The search warrant was for the apartment of the defendant, Robert L. Sodders, in Lenexa, Johnson County, Kansas.

Prior to execution of the warrant, the Overland Park police detectives contacted Lenexa Police Sergeant Dave Burger, told him they were going to execute a search warrant in Lenexa, and requested assistance. The Lenexa Police Department dispatched three uniformed officers to provide security at the apartment. Detective Meyer obtained a key from the apartment manager and used it to enter the residence. All five officers entered the apartment. Detectives Meyer and Gardner executed the search warrant. The three Lenexa officers were there for security only and did not participate in the search.

In the residence, the detectives found two plastic bags containing green leafy vegetation, one wallet, one letter, O’Haus scales, plastic Baggies, a brown marble box, one plate, Zig-zag papers, one address book, and one telephone bill. Detective Gardner testified that there was marijuana on the plate and in the marble box. Detective Gardner filled out and signed the “Inventory, Receipt and Return to Search Warrant” form.

The defendant filed several pretrial motions, including a motion to suppress the evidence seized from his apartment. The court granted defendant’s motion to suppress, finding the Overland Park police officers executed the warrant outside their jurisdiction in violation of K.S.A. 22-2401a.

This case involves the interpretation and interaction of two statutes. First, K.S.A. 22-2505 states: “A search warrant shall be issued in duplicate and shall be directed for execution to all law enforcement officers of the state, or to any law enforcement officer specifically named therein.”

The second statute, K.S.A. 22-2401a, states in relevant part:

“(2) Law enforcement officers employed by any city may exercise their powers as law enforcement officers:

(a) Anywhere within the city limits of the city employing them and outside of such city when on property owned or under the control of such city; and

(b) in any other place when a request for assistance has been made by law enforcement officers from that place or when in fresh pursuit of a person.” (Emphasis added.)

it is undisputed that the Lenexa officers never requested or sought assistance from the Overland Park police. The State contends that K.S.A. 22-2505 authorizes police officers statewide authority to execute search warrants. The State maintains that both a proper application of the rules of statutory construction and the legislative history surrounding the passage of K.S.A. 22-2505 demonstrate that the Overland Park police detectives were acting within their authority in executing a search warrant in Lenexa.

In affirming the district court’s ruling, the Court of Appeals held that the language of K.S.A. 22-2401a places a geographic limitation on the exercise of all law enforcement powers, including the execution of search warrants. In pertinent part, the Court of Appeals stated:

“The geographic limitation is contained in K.S.A. 22-2401a. That statute, instead of K.S.A. 22-2505, is operative here for three reasons. First, K.S.A. 22-2505 makes clear that search warrants must be executed by law enforcement officers; the statute does not purport to establish where an officer may execute a warrant. Second, even if K.S.A. 22-2505 and 22-2401a are understood to be in conflict, then the latest legislative expression controls. See Farmers State Bank & Trust Co. of Hays v. City of Yates Center, 229 Kan. 330, 338, 624 P.2d 971 (1981). The 1977 statute, 22-2401a, thus controls the 1970 enactment, 22-2505. Finally, 22-240la reveals a clear intent by the legislature to limit the jurisdiction of certain law enforcement officers. When a statute is plain and unambiguous, the court must give effect to the expressed legislative intent. State v. Sleeth, 8 Kan. App. 2d 652, 655, 664 P.2d 883 (1983). The language of 22-2505 cannot be read as an exception to the clear geographic limitation set forth in 22-2401a.” 18 Kan. App. 2d at 658-69.

The State’s first and primary argument in opposition to the lower court’s ruling is that the court failed to apply the proper rules of statutory construction in interpreting the two statutes. Specifically, the State contends that the Court of Appeals failed to consider and apply the “general versus special statutes rule.” That rule states: “General and special statutes should be read together and harmonized whenever possible, but to the extent a conflict between them exists, the special statute will prevail unless it appears the legislature intended to make the general statute controlling.” Kansas Racing Management, Inc. v. Kansas Racing Comm’n, 244 Kan. 343, 353, 770 P.2d 423 (1989).

It is the State’s contention that K.S.A. 22-2505, a statute dealing solely with the execution of search warrants, is the more specific statute, and not K.S.A. 22-2401a, a statute setting forth a limitation upon the territory in which law enforcement officers may operate. However, while K.S.A. 22-2505 admittedly applies only to the execution of search warrants, the language of that statute simply cannot be read as an exception to the clear geographic limitation set forth in K.S.A. 22-2401a. This conclusion is supported by this court’s decision in State v. Hennessee, 232 Kan. 807, 658 P.2d 1034 (1983).

In Hennessee, an arrest warrant was issued for the defendant in Pratt County on a charge of theft. The Pratt County sheriff traveled to the defendant’s residence in Stafford County and arrested the defendant pursuant to the arrest warrant. Although both an agent of the KBI and the local Stafford County sheriff were present at the arrest, the Supreme Court ruled that the Pratt County sheriff had no authority to make the arrest in Stafford County. 232 Kan. at 807-09. In its ruling, the Supreme Court determined that the specific language of K.S.A. 22-240la controlled over the general provision of K.S.A. 19-812 (Ensley 1981), which stated:

“The sheriff, in person or by his undersheriff or deputy, shall serve and execute, according to law, all process, writs, precepts and orders issued or made by lawful authority and to him directed, and shall attend upon the several courts of record held in his county, and shall receive such fees for his services as are allowed by law.”

In pertinent part, the court stated:

“The State relies on K.S.A. 19-812 for the proposition the Pratt County sheriff was acting within his authority when he arrested Ms. Hennessee. Admittedly the statute places no limitation upon the territory in which a sheriff may operate. Further, the statute applies to the execution of an arrest warrant since ‘process’ refers to a ‘warrant, writ, order, mandate or other formal writing, issued by some court, body or official having authority to issue process.....’

"The enactment of K.S.A. 22-2401a in 1977, however,- changes things. There a specific limitation was placed on the extraterritorial exercise of power by law enforcement officers. This statute, instead of K.S.A. 19-812, is operative here for two reasons. First, where there is a conflict between two statutes the latest legislative expression controls. Farmers State Bank & Trust Co. of Hays v. City of Yates Center, 229 Kan. 330, 338, 624 P.2d 971 (1981). Second, in State, ex rel. v. Dreiling, 136 Kan. 201, 14 P.2d 644 (1932), the court recognized that a specific limitation on a general statute like K.S.A. 19-812 would control.” (Emphasis added.) 232 Kan. at 808-09.

In Hennessee, we held:

“A sheriff may exercise his powers outside the county where he holds office in only two instances: (1) where he is in ‘fresh pursuit’ of a person, or (2) where a request for assistance has been made by law enforcement officers from the area for which such assistance is requested. K.S.A. 22-2401a.” 232 Kan. 807, Syl. ¶ 2.

As stated previously, it is undisputed that the Lenexa officers did not request assistance from the Overland Park officers and were present solely as a courtesy to the Overland Park officers who requested their assistance.

State v. Lamb, 209 Kan. 453, 497 P.2d 275 (1972), is also instructive. In Lamb, Johnson County sheriff’s officers executed a search warrant in Bourbon County. The appellant attempted to suppress the fruits of the search, arguing that Johnson County sheriff’s officers lacked authority to execute search warrants outside of Johnson County. As in Hennessee, the relevant statute was K.S.A. 19-812. However, at the time of Lamb, the legislature had not yet enacted K.S.A. 22-2401a. (K.S.A. 22-2401a was passed in 1977, five years after Lamb.) The Supreme Court held drat sheriffs were authorized to execute search warrants outside of their respective counties. In pertinent part, the court stated:

“This court held long ago that a sheriff of a county within this state was authorized to serve process outside his county. In State, ex rel., v. Dreiling, 136 Kan. 201, 14 P.2d 644, the court said:

'. . . It is contended in a petition for rehearing that a sheriff has no more authority to go outside the county to serve criminal process issued by a justice of tire peace than a constable [has],

‘The statute defining the authority of sheriffs contains no limitation similar to that contained in the statute relating to constables, and grants general authority to execute process issued and delivered to him. (R.S. 19-812.) Because there is no territorial limitation on the authority of a sheriff to execute a warrant of arrest, the contention is not well founded.’ (p. 202.)” (Emphasis added.) 209 Kan. at 468.

The language of Lamb would clearly indicate that when there is a territorial limitation placed upon a law enforcement officer, that limitation is controlling.

K.S.A. 22-2401a is clear and provides that the jurisdiction of city police officers is limited to the city limits of the city employing them with certain exceptions, none of which is applicable here. It controls over the more general statute, K.S.A. 22-2505.

Next, the State argues the Court of Appeals failed to consider the legislative history of K.S.A. 22-2505. The State maintains that because the statute was adopted from an Illinois statute we should look to that State’s interpretation of its statute. This argument has no merit whatsoever. K.S.A. 22-2505 and the Illinois statute are not identical and, in addition, 22-2505 is clear and unambiguous. When the intent of a statute is clear and unambiguous, the court must give effect to the statute as written, and there is no need to resort to statutory construction. State v. Schlein, 253 Kan. 205, 219, 854 P.2d 296 (1993). K.S.A. 22-2505 is a general statute which provides that search warrants shall be executed by law enforcement officers and has nothing to do with the territorial jurisdiction of officers.

Other arguments raised in the Court of Appeals were not addressed in the State’s petition for review and need not be considered here. They were adequately considered by the Court of Appeals.

K.S.A. 22-2401a(2)(b) provides that city police officers may exercise their powers outside the city in two instances: “when a request for assistance has been made by law enforcement officers from that place [the extraterritorial jurisdiction] or when in fresh pursuit of a person.” Neither exception applies here, and the Overland Park officers had no authority to execute the search warrant in Lenexa. The mere presence of Lenexa officers, even though at the request of the Overland Park officers, does not meet the requirements of the statute. As stated by the Court of Appeals:

“[H]ad it chosen to do so, the Kansas Legislature could have adopted a rule of unlimited jurisdiction for police officers, or a rule dependent upon notification or presence or participation by local officers. But, instead, the legislature set out a ‘request for assistance’ rule in 22-2401a. This court must give effect to the statute and apply the rule adopted by the legislature.” 18 Kan. App. 2d at 660.

The judgments of the Court of Appeals and the district court are affirmed. The appeal is denied.

McFarland, J., dissenting.