State v. Vrabel

305 P.3d 35, 49 Kan. App. 2d 61

• Court: Court of Appeals of Kansas
• Decided: June 14, 2013
• Docket: No. 108,930
• Status: Published

Opinions

Pierron, J.:

The State appeals from the district court’s suppression of the evidence obtained through a controlled drug buy conducted by police outside their jurisdiction.

On July 26,2011, a confidential informant (Cl) advised Corporal Ivan Washington of the Prairie Village Police Department (PVPD) that Carl Vrabel was selling hash. Cpl. Washington had the Cl arrange to purchase hash from Vrabel at a grocery store in Lea-wood, Kansas. Cpl. Washington did not know where Vrabel was when he spoke to the Cl on the phone. The groceiy store was selected because it was located on a main road into Missouri, where Vrabel lived, and was one of law enforcement’s traditional buy locations.

At around 10:26 a.m. the next day, Cpl. Washington called Lieutenant Kevin Cauley, the operations commander of the Leawood Police Department (LPD), to notify him of the drug investigation. LPD had participated in previous controlled buys.

At an undisclosed location in Prairie Village, the PVPD gave the Cl $120 of marked buy money and wired the Cl with audio equipment. Then they proceeded to the buy location. At 1:20 p.m., Cpl. Washington called Lt. Cauley again to notify him they were en route to Leawood.

At around 1:24 p.m., the PVPD surveilled the controlled buy. Cpl. Washington testified LPD officers were not present and provided no assistance, whereas Lt. Cauley testified that he was not sure whether LPD provided any assistance but thought they stayed out of the area. After the Cl parked in a stall at the grocery store, a vehicle pulled into a neighboring stall. Vrabel exited the vehicle and entered the Cl’s vehicle. PVPD officers listened as the Cl paid for and Vrabel furnished the hash. Vrabel exited the Cl’s vehicle, entered his own vehicle, and drove away.

The PVPD did not contact Vrabel that day. But they did meet the Cl at an undisclosed location to retrieve the hash and wire. At 1:28 p.m., Cpl. Washington called Lt. Cauley a third time to notify him that the controlled buy was successful, no one was hurt, and PVPD was leaving his city.

The State charged Vrabel with distribution of marijuana and use of a communication facility to sell a controlled substance. Before trial, Vrabel filed a motion to suppress, arguing that PVPD unlawfully exercised its jurisdiction by “set[ting] up and investigating] a crime” in Leawood. In granting the motion, the district court made the following finding:

“The Prairie Village officers obtained the challenged evidence through an investigation and controlled drug transaction that occurred in Leawood, Kansas, therefore, they exercised their powers as law enforcement officers outside of their jurisdiction pursuant to K.S.A. 22-2401a(2). There was no request for assistance from Leawood officers, and the fresh pursuit exception does not apply. Further, subsection (7) of K.S.A. 22-2401a and K.S.A. 22-2403 do not apply. As a result, the Prairie Village officers obtained the drug evidence and the conversation between the Cl and Defendant unlawfully.”

The State filed a motion to reconsider. In denying the motion, the district court made thesé findings: (1) No case law has upheld an independent police investigation without the cooperation of the other jurisdiction; (2) K.S.A. 22-2401ais the controlling statute and it does not deal strictly with arrests; (3) No statutory basis exists that allows police to go outside of their jurisdiction to perform unilateral investigations; and (4) The investigation cannot be considered a citizen’s arrest since the police used the ‘color of their office’ to initiate the investigation.

The State filed for an interlocutory appeal which was allowed.

The State’s argument is threefold: (1) K.S.A. 22-2401a does not apply to a police officer’s investigation of a crime; (2) even if it does apply, either the “request for assistance” or the “bordering municipalities” exception applies; and (3) even if no exception applies, suppression is not the appropriate remedy for violation of the statute.

An appellate court uses a bifurcated standard when reviewing a district court’s decision on a motion to suppress. The factual underpinnings of the suppression decision are reviewed under a substantial competent evidence standard, and the ultimate legal conclusion drawn from those facts is reviewed de novo. An appellate court does not reweigh evidence. When the facts are undisputed, an appellate court exercises unlimited de novo review of the district court’s legal conclusion. State v. Edgar, 296 Kan. 513, 519-20, 294 P.3d 251 (2013). Moreover, interpretation of K.S.A. 22-2401a is a question of law over which an appellate court exercises unlimited review. State v. Mendez, 275 Kan. 412, 416, 66 P.3d 811 (2003).

The jurisdiction of municipal police officers is governed by K.S.A. 2012 Supp. 22-2401a, which provides 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 sucli 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.”

The Plain Language of K.S.A. 2012 Stupp. 22-2401a(2) Limits the Authority of Municipal Officers to Exercise Their Powers as Law Enforcement Officers, and Does Not Expand Their Authority to Investigate Suspected Criminals

“The most fundamental rule of statutory construction is that the intent of the legislature governs if that intent can be ascertained. An appellate court’s first attempt to ascertain legislative intent is through an analysis of the language employed, giving ordinary words their ordinary meaning. If a statute is plain and unambiguous, an appellate court does not need to speculate further about legislative intent and, likewise, the court need not resort to canons of statutory construction or legislative history.” State v. Wells, 296 Kan. 65, Syl. ¶ 9, 290 P.3d 590 (2012).

A law enforcement officer is

“any person who by virtue of office or public employment is vested by law widi a duty to maintain public order or to malee arrests for violation of the laws of the state of Kansas or ordinances of any municipality thereof. . . while acting within the scope of their authority.” (Emphasis added.) K.S.A. 22-2203(13).

“Absent guidelines, police officers are vested with the necessary discretionary authority to act in an appropriate manner to protect the public.” ’ [Citation omitted.]” Mills v. City of Overland Park, 251 Kan. 434, 446, 837 P.2d 370 (1992).

Such guidelines limiting the authority of Kansas police officers include the Fourth Amendment to the United States Constitution and § 15 of tire Kansas Constitution Bill of Rights (no unreasonable searches or seizures), K.S.A. 22-2401 (circumstances under which officer may arrest person), K.S.A. 22-2402 (circumstances under which an officer may stop a person), K.S.A. 22-2405 (how to effect arrest); K.S.A. 22-2408 (circumstances under which officer may serve notice to appear), and the key to this case, K.S.A. 2012 Supp. 22-2401a (where officers may exercise their powers).

Generally, municipal officers are authorized to exercise their law enforcement powers within their city of employment, on properly owned or control by the city, and in any other place when in fresh pursuit or when local law enforcement has requested assistance. K.S.A. 2012 Supp. 22-2401a(2). But the legislature has expanded the authority of municipal officers to exercise their law enforcement powers in certain situations. See K.S.A. 2012 Supp. 22-2401a(5) (“In addition to the areas where law enforcement officers may exercise their powers pursuant to subsection [2], law enforcement officers of any jurisdiction within Johnson or Sedgwick county may exercise their powers as law enforcement officers in any area within the respective county when executing a valid arrest warrant or search warrant.” [Emphasis added.]); K.S.A. 2012 Supp. 22-2401a(7) (“In addition to the areas where law enforcement officers may exercise their powers pursuant to subsection [2], law enforcement officers of any jurisdiction within Johnson county may exercise their powers as law enforcement officers in any adjoining city widiin Johnson county when any crime, including a traffic infraction, has been or is being committed by a person in view of the law enforcement officer/1 [Emphasis added.]).

The plain language of K.S.A. 2012 Supp. 22-2401a(2) limits the authority of municipal officers to exercise their powers as law enforcement officers. And the legislature has not carved out additional areas where officers may exercise those powers to investigate a suspected criminal. Therefore, we must decide whether tire PVPD’s drug buy was a lawful exercise of authority.

The PVPD Had Authority as Law Enforcement Officers to Conduct the Controlled Buy Because Their Agreement with the LPD Constituted a “Request for Assistance” Under K.S.A. 2012 Supp. 22-2401a(2)(B)

Kansas appellate courts construe statutes in such a way as to avoid unreasonable results. State v. Turner, 293 Kan. 1085, 1088, 272 P.3d 19 (2012).

The Kansas Supreme Court has held that in determining whether a “request for assistance” was made under K.S.A. 22-2401a(2)(b), it is irrelevant whether the requesting department had an actual need for assistance or whether such need could have been met by its own law enforcement officers. State v. Ross, 247 Kan. 191, Syl. ¶ 2, 795 P.2d 937 (1990). The Kansas Court of Appeals has held that oral agreements between law enforcement departments constitute a “request for assistance.” See State v. Rowe, 18 Kan. App. 2d 572, 574, 856 P.2d 1340 (1993), rev. denied 253 Kan. 863 (1993); State v. Davidson, No. 98,862, 2008 WL 4291617, at *1-4 (Kan. App. 2008) (unpublished opinion).

In Rowe, a Wabaunsee County resident called 911 to report a suspicious vehicle in her driveway. The police department of Wa-mego, a city outside Wabaunsee County, went to investigate. A Wabaunsee County Sheriff s officer heard the radio traffic of the Wamego police officers and responded over tire radio drat he was en route. Meanwhile, the Wamego officers found a man passed out at the residence. After they roused him, he tried to leave the scene so they took his car keys. When he became combative, they physically restrained him. Then the Wabaunsee County Sheriffs officer arrived and conducted his investigation, which resulted in charges of driving under the influence of alcohol (DUI) and driving while suspended.

The Rowe court held that the long-standing oral agreement for assistance between the requesting sheriff s department and a city police department was a “request for assistance.” 18 Kan. App. 2d 572, Syl. ¶ 2. Admittedly construing the statute to avoid unreasonable results, the court reasoned:

“[T]he term ‘request for assistance’ should be interpreted to include agreements similar to the one between tire Wabaunsee County sheriff and the City of Wamego chief of police. To do otherwise would severely limit county sheriffs officers’ ability to respond quickly and efficiently to emergencies. The agreement between the Wabaunsee County sheriff and tire Wamego chief of police is narrowly drawn and requests assistance only in situations where an emergency easts, if near the county line, and until a Wabaunsee County sheriff s officer arrives.” 18 Kan. App. 2d at 574.

The court also noted that an implied request could constitute a “request for assistance,” but the acquiescence or acceptance of assistance in this case did not. 18 Kan. App. 2d at 573-74.

In Davidson, a Hiawatha police officer followed a vehicle that was being driven erratically in Hiawatha. As he exited the city, the Hiawatha officer radioed the Brown County Sheriff s Department to inform it of a potentially dangerous situation. Because the Brown County deputy was 20 minutes away, he instructed tire Hiawatha officer to follow the vehicle and stop it if necessary. After observing the vehicle cross the fog line, the Hiawatha officer initiated a traffic stop and conducted a DUI investigation. The Brown County deputy arrived at the scene as the Hiawatha officer was arresting the driver.

The Davidson court held that the long-standing agreement between the requesting county sheriff s department and a city police department was a “request for assistance.” 2008 WL 4291617, at *3. The court, construing the statute to avoid unreasonable results, reasoned:

“Brown County’s oral agreement with the Hiawatha Police Department is a reasonable means to protect the health and safety of its citizens and to ensure a swift response to emergency situations. Lamar Shoemaker, the Brown County Sheriff, testified that the county has approximately 576 square miles and that the department only has six road deputies to patrol it. The agreement is hardly too broad since the decision is made on a case-by-case basis that allows for immediate action when someone’s safety is at risk. As Shoemaker testified, ‘It’s not automatic.’ ” 2008 WL 4291617, at *3.

The court also found that the jurisdiction requesting assistance need not initiate the call. 2008 WL 4291617, at *2.

Here, Cpl. Washington testified that it was “[njormal protocol” to call Lt. Cauley to notify him that PVPD officers were “coming to his city for a narcotics investigation,” and to offer Leawood police the “opportunity ... to come out... or refuse to.” He stated the grocery store was a location that had been “traditionally use[d]” for drug buys, and other locations in Prairie Village also had been used for drug buy. He also stated LPD had participated in previous drug buys by conducting surveillance and takedowns. Finally, Cpl. Washington explained:

“Normally, in drug units we have contact people. So people know ... if you’re coming to the City of Prairie Village and you do a narcotics investigation!], the other narcotics supervisors know that I was the point of contact. So hypothetically, if I go to Overland Park, I’m calling Tom Smith. If I’m going to the County, I’m calling Tom Reddin; Lenexa is Dan Ousley . . . ; Shawnee is Gaiy Hall. So the list goes on and on. But we all know the point of contact.”

Lt. Cauley described the arrangement between the LPD and PVPD:

“I typically ask [Cpl. Washington] what land of assistance he would like from us. Sometimes they will be in the area making a drug buy and sometimes they would like to do it covertly and I ask our black and white cars to stay out of the area. And sometimes they will ask for our assistance on a buy bust and they want patrol cars in the area. And sometimes they will just want some covert assistance and I might have a detective or two go over there and stand by in the area.”

He stated that when he receives a call from PVPD, he decides whether to dispatch LPD officers to the drug buy. Finally, Lt. Cauley explained he could not be sure his officers did not surveil the drug buy at issue because no reports had been generated and he had not asked them.

This testimony reveals that there was at least an implied agreement for drug-buy assistance between the PVPD and the LPD. Lt. Cauley s action should not be considered acquiescence because, unlike the officer in Rowe who heard of the assistance over the radio, Lt. Cauley was called before the assistance was provided. It is irrelevant that Cpl. Washington initiated the request, like the officer in Davidson did after observing tire drunk driver. Just as refusing to construe the agreements in Rowe and Davidson as requests for assistance would have severely limited the requesting departments’ ability to respond quickly to emergencies and protect their citizens, refusing to construe the agreement in this case as a request for assistance would limit the PVPD’s and LPD’s ability to combat drug crime and protect their citizens. Finally, like the agreement in Davidson, the drug-buy agreement is not too broad since Lt. Cauley makes decisions on a case-by-case basis.

Construing the statute to avoid unreasonable results, we hold the agreement between the PVPD and the LPD constituted a “request for assistance” under K.S.A. 2012 Supp. 22-2401a(2)(b) and, therefore, the PVPD’s drug buy was a lawful exercise of its law enforcement authority.

Reversed and remanded for further proceedings.

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