9389x

Opinion/ Ruling of Acquittal in Wilsons Winning case from Kansas. This docum ent is: http://www.lawyerdude.netfirm s.com /9389x.wpd http://www.lawyerdude.netfirm s.com /9389x.pdf and http://www.lawyerdude.netfirm s.com /9389x.htm l Related docum ents: Copy of the actual file-stam ped copy on file at the court house: http://www.lawyerdude.netfirm s.com /9389.htm l Section 1983 federal com plaint: http://www.lawyerdude.netfirm s.com /9391.htm l http://www.lawyerdude.netfirm s.com /9391.pdf and http://www.lawyerdude.netfirm s.com /9391.wpd Copy of the ticket: http://www.lawyerdude.netfirm s.com /9403.pdf Transcript of hearing/ Motion to Suppress: http://www.lawyerdude.netfirm s.com /9386.htm l http://www.lawyerdude.netfirms.com/9386.pdf and http://www.lawyerdude.netfirms.com/9386.wpd
Decision and Journal Entry of Judgment. 29 April 2008. Linn County Judge Smith.
Note by Plaintiff Richard Wilson: Judge Smiths 5 page Decision and Journal Entry has the pages out of order in the version published on the internet at http://www.lawyerdude.netfirms.com/9389.pdf . The following transcription corrects that mistake. The following transcription does not correct the mistaken date of December 6. In fact the traffic stop happened on December 26 which I remember clearly. It was the day after Christmas. I have published the ticket here: http://www.lawyerdude.netfirms.com/9403.pdf You can read it for yourself. This following order bears a filing date of 29 April 2008.

Judge Smith wrote as follows verbatim and in its entirety:

The defendant is charged with driving with an expired drivers license. During a trial to the court the defendant m oved to suppress all evidence obtained after his stop and im m ediate arrest. The defendant was attending a m eeting of the Linn County Com m issioners on Decem ber 6, 2006. The arresting officer, Deputy Filla appeared at the m eeting and then left. Deputy Filla then positioned him self near the County Com m ission cham bers. W hen the defendant left the m eeting Deputy Filla followed him west on K52 (Main Street in Mound City). On the west side of Mound city he activated his em ergency lights and pulled the defendant over in the local grocery store parking lot. A brief and polite discussion ensued wherein the officer requested the defendants driver license. The officer testified that he did not recall whether or not the defendant stated he had a driver license or not, but suggested that one was not required. W ithout any additional inform ation the defendant was then arrested for driving with an expired license and taken to the Linn County Jail for booking. At the conclusion of the booking process in the Linn County Jail Deputy Filla then ran a com puter check of defendants driver license and verified that the defendant was in fact operating a m otor vehicle with a driver license that had expired in the year 2000. The testim ony indicates that the defendant is well know to Officer Filla. In Septem ber of 2004 (Septem ber 18, 2004 to be precise) Deputy Filla responded to defendants rural Linn County residence in response to a report that dogs were killing the defendants cattle. Deputy Filla testified that as part of his investigation into the dog attack he had reviewed the defendants driver license records which indicated that his driver license had expired in 2000. Deputy Filla testified that prior to the arrest of the defendant on Decem ber 6, 2006, he had not done any further investigation regarding the defendants driver license status. Deputy Filla did testify that prior to the arrest of the defendant (presum ably while he was following the defendant down Main Street) Deputy Filla called the Undersheriff to determ ine if he needed any additional p.c. to effectuate an arrest. Although Deputy Filla presum ably could have sim ply called dispatch and run a com puter check of the defendants driver status he elected not to do so and he perform ed no other investigation to determ ine if the defendants driver license was still expired. The pertinent facts of this case are sim ple and uncontroverted. The defendant was arrested on Decem ber 6, 2006 for operating a m otor vehicle with an expired driver license. The only inform ation the arresting officer possessed indicating that the defendants driver license was expired was the com puter check of the defendants driver license done in Septem ber of 2004. Despite ready access to the inform ation confirm ing the defendants driver license status the officer perform ed no investigation and possessed no other inform ation regarding the defendants driver license status until well after the defendant was arrested and booked into jail. In this m atter the State argues that the arresting officer had a reasonably articulable suspicion sufficient to justify the initial traffic stop of the defendant. This is based upon the concept that the officer could reasonably conclude that since the defendant had not renewed his driver license from som etim e in 2000 until Septem ber 2004 that he continued to operate a m otor vehicle with an expired driver license in Decem ber of 2006. K.S.A. 22-24-2(1) is a codification of the Fourth Am endm ent Search and Seizure principles expressed in Terry v Ohio, 392 U.S. 1, 20 L. Ed. 2nd 889 (1968). That statutes provides without m aking an arrest, a law enforcem ent officer m ay stop any person in a public place whom such officer reasonably suspects is com m itting, has com m itted, or is about to com m it a crim e and m ay dem and . . . the nam e, address of such suspect and an explanation of such suspects actions. As a result of this statute and the applicable case law a law enforcem ent officer m ust have articulable facts sufficient to constitute a reasonable suspicion that a

crim e has been or is about to be com m itted in order to justify an initial traffic stop. This case does not turn on the question of reasonable articulable suspicion. In this case the defendant was actually placed under arrest based solely upon the officers knowledge that the defendant had an expired driver license som e two years and 3 m onths prior to the arresting incident. The Fourth Am endm ent perm its a duly authorized law enforcem ent officer to m ake a warrantless arrest in a public place but only under specific circum stances. K.S.A. 22-2401 specifically provides that a suspect m ay be arrested if the officer has probable cause to believe that any crim e . . . has been or is being com m itted by the person in the officers view. A person is considered to be under arrest when he/she is physically restrained or when he/she subm itted to the officers custody for purposes of answering for the com m ission of a crim e. See K.S.A. 22-2202(4) and K.S.A. 22-2405(1). A warrantless arrest in a public place violates the Fourth Am endm ent of the Kansas Constitution if the arrest is not based upon probable cause. See State v Ramirez, 278 Kan. 402, 404 (2004). All evidence obtained as the result of illegal arrest m ust be suppressed. See State v Hill, 281 Kan. 136 (2006). Evidence constituting probable cause which had occurred nine m onths prior to the request for a warrant was determ ined by the Appellate Courts to be stale in State v Probst, 247 Kan. 196 (1990). Evidence constituting probable cause concerning events that occurred within 60 days of the application of a warrant were found to be stale under the facts of the case in State v Tyler, an unpublished decision of the Court of Appeals found at 138 P. 3 rd 417 (2006). The general rule is that stale inform ation cannot support a finding of probable cause. Stale inform ation only gives rise to a m ere suspicion and not a reasonable belief, especially when the item s to be obtained in a search are easily concealed and rem oved. Raymer v State, 482 N.E. 2
nd

352 (Ind. 1985) cited with approval in State v Cunningham, 90 P.3rd 379 (2004).

W hile the Kansas courts have not specifically addressed the issue of staleness as it related to probable cause for an arrest the courts have analyzed the issue relative to the issuance of search warrants. The first is whether the crim inal activity is continuous. The second is the tim e between the issuance of the warrant and the alleged crim inal activity relied upon to establish probable cause. The third is the use of present or past tense verbs in the affidavit supporting a search warrant. Finally the Court looks at the likelihood the contraband would be m oved from the location of the proposed search. Taking all these factors into consideration the Court determ ined there m ust be a logical link between the place to be searched, the property seized, and the crim inal conduct. See State v Hemme, 15 Kan. App. 2 nd 198, 203. Deputy Filla testified that it would take the defendant less than 5 m inutes in order to obtain a valid driver license. Deputy Filla also testified that nothing stood in the way of the defendant doing so since the tim e of his initial investigation in Septem ber of 2004. Under the facts and circum stances of this case the Court determ ines that Officer Filla was without probable cause to arrest the defendant for driving with an expired driver license. As all other evidence indicating proof that the defendant was com m itting said crim e was obtained during the course of and after this illegal arrest, that evidence is suppressed. On the basis of the above and foregoing the Court enters an order and judgm ent of acquittal. The defendant is discharged from the jurisdiction of this Court. It is so ordered. Richard M. Sm ith Chief District Judge