2020 Criminal Procedure Survey Archive
Oct. 2020 - Nov. 2020
"Consent to Search Can be Given by Gestures, Kansas Supreme Court Clarifies
Nov. 30, 2020
The Fourth Amendment of the U.S. Constitution and section 15 of the Kansas Constitution Bill of Rights permit warrantless searches of an individual’s residence if the individual consents to the search. To be valid, the consent must be unequivocal, specific, and freely and intelligently given. May an individual consent to a warrantless search through nonverbal conduct?
The Fourth Amendment of the U.S. Constitution and section 15 of the Kansas Constitution Bill of Rights permit warrantless searches of an individual’s residence if the individual consents to the search. To be valid, the consent must be unequivocal, specific, and freely and intelligently given. May an individual consent to a warrantless search through nonverbal conduct?
2020 Election Sees Oregon Take a Bold New Step in Decriminalizing Hard Drug Possession. Will Other States Follow?
Nov. 30, 2020
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Breonna Taylor's Murder: When Legal Definitions Don't Reflect Reality
Oct. 28, 2020
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Local Governments Act When States and the Federal Government Refuse to Lower Penalties for Small Drug Offenses
Oct. 6, 2020
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Aug. 2020 - Sept. 2020
No Retroactive Application: Probation Revocation and the 2019 Amendments
Sept. 13, 2020
Prior to 2019, Kan. Stat. Ann. § 22-3716 (c)(1)(A)–(D)[1] required a court to impose both a jail sanction and a prison sanction before revoking a violator’s probation. In 2019, the Legislature amended the statute, removing the prison sanction requirement. Does the 2019 amendment apply retroactively to a defendant who committed her crimes and violated her probation before the amendment went into effect?
Prior to 2019, Kan. Stat. Ann. § 22-3716 (c)(1)(A)–(D)[1] required a court to impose both a jail sanction and a prison sanction before revoking a violator’s probation. In 2019, the Legislature amended the statute, removing the prison sanction requirement. Does the 2019 amendment apply retroactively to a defendant who committed her crimes and violated her probation before the amendment went into effect?
Conflict or Cooperation? Mandatory Consecutive Sentencing Statutes Declared Harmonious
Sept. 3, 2020
Kan. Stat. Ann. § 21-6606(d)[1] mandates that individuals convicted of felonies while on bond release for a prior felony shall serve the sentences for each felony consecutively, unless, as provided by Kan. Stat. Ann. § 21-6819(a),[2] mandatory application of a consecutive sentence would result in manifest injustice. Kan. Stat. Ann. § 21-6604(f)(4) provides that, if an offender commits a new felony while on release for a prior felony, “a new sentence may be imposed consecutively pursuant to the provisions of [Kan. Stat. Ann. § 21-6606].”[3] Does Kan. Stat. Ann. § 21-6604(f)(4) make a consecutive sentence permissive and within the court’s discretion?
Kan. Stat. Ann. § 21-6606(d)[1] mandates that individuals convicted of felonies while on bond release for a prior felony shall serve the sentences for each felony consecutively, unless, as provided by Kan. Stat. Ann. § 21-6819(a),[2] mandatory application of a consecutive sentence would result in manifest injustice. Kan. Stat. Ann. § 21-6604(f)(4) provides that, if an offender commits a new felony while on release for a prior felony, “a new sentence may be imposed consecutively pursuant to the provisions of [Kan. Stat. Ann. § 21-6606].”[3] Does Kan. Stat. Ann. § 21-6604(f)(4) make a consecutive sentence permissive and within the court’s discretion?
"Qualified Immunity Undermines Civil Rights Claims, But the Supreme Court Won’t Hear It
Aug. 26, 2020
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A Welfare Check Gone Arrest: Attenuation Doctrine and the Fourth Amendment
Aug. 25, 2020
The attenuation doctrine renders illegally obtained evidence admissible when the connection between the evidence and the unconstitutional police conduct is sufficiently remote or attenuated. During a welfare check, an officer seized methamphetamine from Defendant Ellis, even though there was no indication of criminal conduct. Under the attenuation doctrine, is evidence of the methamphetamine admissible?
The attenuation doctrine renders illegally obtained evidence admissible when the connection between the evidence and the unconstitutional police conduct is sufficiently remote or attenuated. During a welfare check, an officer seized methamphetamine from Defendant Ellis, even though there was no indication of criminal conduct. Under the attenuation doctrine, is evidence of the methamphetamine admissible?
July 2020 - Aug. 2020
District Courts May Impose Sentences Concurrently or Consecutively When the Sentencing Occurs for Multiple Cases on the Same Day
Aug. 19, 2020
Following his probation revocation, the trial court sentenced Jeremy Dunham for multiple cases on the same date. Kan. Stat. Ann. § 21-6606 generally allows court discretion in imposing consecutive or concurrent sentences, but requires consecutive sentences if the defendant committed a crime while on probation. Does Kan. Stat. Ann. § 21-6606 require Dunham’s sentences to run consecutively, rather than concurrently?
Following his probation revocation, the trial court sentenced Jeremy Dunham for multiple cases on the same date. Kan. Stat. Ann. § 21-6606 generally allows court discretion in imposing consecutive or concurrent sentences, but requires consecutive sentences if the defendant committed a crime while on probation. Does Kan. Stat. Ann. § 21-6606 require Dunham’s sentences to run consecutively, rather than concurrently?
“Knife” Definition Declared Unconstitutionally Vague
Aug. 14, 2020
In Kansas, it is illegal for a convicted felon to possess a knife. A knife is defined in Kan. Stat. Ann. 2019 Supp. 21-6304 as “a dagger, dirk, switchblade, stiletto, straight-edged razor or any other dangerous or deadly cutting instrument of like character.” Is the phrase “or any other dangerous or deadly cutting instrument of like character” unconstitutionally vague?
In Kansas, it is illegal for a convicted felon to possess a knife. A knife is defined in Kan. Stat. Ann. 2019 Supp. 21-6304 as “a dagger, dirk, switchblade, stiletto, straight-edged razor or any other dangerous or deadly cutting instrument of like character.” Is the phrase “or any other dangerous or deadly cutting instrument of like character” unconstitutionally vague?
Manifest Necessity Required to Declare Jury Deadlocked
July 20, 2020
Whether the goading standard or the manifest necessity standard applies to a double jeopardy claim when the defendant does not object or consent to a trial court’s sua sponte declaration of a deadlocked jury.
Whether the goading standard or the manifest necessity standard applies to a double jeopardy claim when the defendant does not object or consent to a trial court’s sua sponte declaration of a deadlocked jury.
Kansas District Courts’ Authority to Interpret Ambiguous Jury Verdicts
July 5, 2020
Can a district court invoke the surplusage rule and discard part(s) of a jury verdict form when the form incorrectly lists the crimes for which the criminal defendant was charged?
Can a district court invoke the surplusage rule and discard part(s) of a jury verdict form when the form incorrectly lists the crimes for which the criminal defendant was charged?
May 2020 - June 2020
Mootness After Sentence Completion: A Prudential Analysis
June 27, 2020
Is an appeal to correct an illegal sentence moot if the petitioner already completed the sentence and has no other collateral injury to redress?
Is an appeal to correct an illegal sentence moot if the petitioner already completed the sentence and has no other collateral injury to redress?
"Where Mental Culpability Not Required, Voluntariness Still Relevant to the Actus Reus Requirement
June 27, 2020
K.S.A. 21-5503(a)(3) has no requirement for mental culpability for rape when it involves sexual intercourse with a child under 14, which is unique from every other section. However, K.S.A. 21-5201 requires voluntary conduct for all criminal action. Does K.S.A. 21-5503(a)(3) mean that any defense to sexual intercourse with a child under 14 showing culpability is irrelevant?
K.S.A. 21-5503(a)(3) has no requirement for mental culpability for rape when it involves sexual intercourse with a child under 14, which is unique from every other section. However, K.S.A. 21-5201 requires voluntary conduct for all criminal action. Does K.S.A. 21-5503(a)(3) mean that any defense to sexual intercourse with a child under 14 showing culpability is irrelevant?
Understanding Jury Trial Waivers
May 31, 2020
Is telling both your attorney, who has informed you of your rights, and the district court, which asks for a choice between a “bench trial and the case decided by a judge,” enough to constitute a knowing and voluntarily waiver of your Sixth Amendment right to trial by a jury?
Is telling both your attorney, who has informed you of your rights, and the district court, which asks for a choice between a “bench trial and the case decided by a judge,” enough to constitute a knowing and voluntarily waiver of your Sixth Amendment right to trial by a jury?
Defendant’s Responsibility for Fact Finding in Constitutional Sentencing Challenges
May 31, 2020
Whether a high court must remand a case to the lower court to develop the necessary factual record for an as-applied challenge to a sentence arguing it was constitutionally impermissible under section 9 of the Kansas Constitution Bill of Rights.
Whether a high court must remand a case to the lower court to develop the necessary factual record for an as-applied challenge to a sentence arguing it was constitutionally impermissible under section 9 of the Kansas Constitution Bill of Rights.
Apr. 2020 - May 2020
Kansas v. Glover: U.S. Supreme Court Decides Kansas Case About Traffic Stops
May 31, 2020
When an officer learns the registered owner of a vehicle has a revoked driver’s license and initiates a traffic stop, is the inference that the registered owner is also the driver sufficient to give the officer a reasonable suspicion of criminal activity, as required by the Fourth Amendment?
When an officer learns the registered owner of a vehicle has a revoked driver’s license and initiates a traffic stop, is the inference that the registered owner is also the driver sufficient to give the officer a reasonable suspicion of criminal activity, as required by the Fourth Amendment?
Criminal History Calculations with Prior In-State Convictions
Apr. 27, 2020
When calculating criminal history with prior in-state convictions committed before Kansas Sentencing Guidelines reform, does the Wetrich “identical-or-narrower” test apply?
When calculating criminal history with prior in-state convictions committed before Kansas Sentencing Guidelines reform, does the Wetrich “identical-or-narrower” test apply?
Voting in Kansas Under COVID-19: How a 2019 Elections Bill Could Offer Protections
Apr. 19, 2020
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Apr. 2020
Court Videoconferencing and Deadline Extensions
Apr. 7, 2020
The House Substitute for Senate Bill 102 allows the Chief Justice of the Kansas Supreme Court to extend any statutory deadline and to authorize video conferences in any court proceeding, when necessary for public health and safety.
The House Substitute for Senate Bill 102 allows the Chief Justice of the Kansas Supreme Court to extend any statutory deadline and to authorize video conferences in any court proceeding, when necessary for public health and safety.
A Taser is a Deadly Weapon
Apr. 5, 2020
Is a taser a “deadly weapon” within the meaning of Kan. Stat. Ann. § 22-4902(e)(2)?
Is a taser a “deadly weapon” within the meaning of Kan. Stat. Ann. § 22-4902(e)(2)?
Payment Plans for Restitution
Apr. 5, 2020
Did the district court illegally sentence a defendant by failing to establish a payment plan when ordering her to pay restitution?
Did the district court illegally sentence a defendant by failing to establish a payment plan when ordering her to pay restitution?
Knowingly and Fairly Made Pleas
Apr. 1, 2020
Under a motion to withdraw, is a plea knowingly and fairly made when the possible sentence term was mathematically different from the corrected sentence term?
Under a motion to withdraw, is a plea knowingly and fairly made when the possible sentence term was mathematically different from the corrected sentence term?
Feb. 2020 - Mar. 2020
Checking Warrants are within the Scope of Public Safety Stops
Feb. 19, 2020
Is an officer asking for a person’s name and subsequently checking that name for local warrants within the scope of a public safety stop?
Is an officer asking for a person’s name and subsequently checking that name for local warrants within the scope of a public safety stop?
Sweeping Hand Gesture Counts as Consent to Search
Feb. 19, 2020
Does opening a door to a residence and simultaneously making a non-verbal sweeping gesture in response after an officer’s request to enter count as consenting to the officer’s entry to search the residence?
Does opening a door to a residence and simultaneously making a non-verbal sweeping gesture in response after an officer’s request to enter count as consenting to the officer’s entry to search the residence?
Jan. 2020 - Feb. 2020
Is Anyone Home? Dwelling Definition Reverses Burglary Conviction
Feb. 19, 2020
Does a house meet the definition of “dwelling” for the purposes of Kan. Stat. Ann. § 21-5807(a)(1) if the house is uninhabited at the time of a burglary and the owner had no plans to live in or to rent the house?
Does a house meet the definition of “dwelling” for the purposes of Kan. Stat. Ann. § 21-5807(a)(1) if the house is uninhabited at the time of a burglary and the owner had no plans to live in or to rent the house?
Probation Revocation Hearings Require Competency
Jan. 15, 2020
There is no statutory protection requiring a defendant be competent at a hearing to revoke his probation. Is competence constitutionally protected nonetheless at this stage?
There is no statutory protection requiring a defendant be competent at a hearing to revoke his probation. Is competence constitutionally protected nonetheless at this stage?
Warrantless Blood Test Requires a Remand
Jan. 11, 2020
Was there probable cause to administer a warrantless blood test on an unconscious driver suspect of a drunk-driving offense?
Was there probable cause to administer a warrantless blood test on an unconscious driver suspect of a drunk-driving offense?
Jan. 2020
Voluntary Intoxication Not a Defense to Reckless Homicide
Jan. 11, 2020
(1) Did the trial court correctly admit a past diversion agreement to demonstrate a a knowledge of the dangers of driving while intoxicated?
(2) Is voluntary intoxication a defense to reckless homicide?
(1) Did the trial court correctly admit a past diversion agreement to demonstrate a a knowledge of the dangers of driving while intoxicated?
(2) Is voluntary intoxication a defense to reckless homicide?