State v. Bruce, No. 105,884.

• Decision Date: 02 November 2012
• Docket Number: No. 105,884.
• Citation: 287 P.3d 919
• Parties: STATE of Kansas, Appellant, v. Charles Elmer BRUCE, Jr., Appellee.
• Court: Kansas Supreme Court

287 P.3d 919

STATE of Kansas, Appellant,

v.Charles Elmer BRUCE, Jr., Appellee.

No. 105,884.

Supreme Court of Kansas.

Nov. 2, 2012.

Syllabus by the Court

K.S.A. 2011 Supp. 75–710, when read in conjunction with K.S.A. 2011 Supp. 22–2515(a)(1)–(20) to permit the Kansas Attorney General to delegate the power to apply for a wiretap order to an assistant attorney general is more permissive than 18 U.S.C. § 2616(2) (2006) and thus preempted. A wiretap order obtained under such a delegation violates a central provision of the federal statutory scheme, and the evidence obtained or derived from the wiretap must be suppressed.Lee J. Davidson, assistant attorney general, argued the cause, and Derek Schmidt, attorney general, was with him on the briefs for appellant.

Jeb C. Griebat, of Griebat Law Office, of Chanute, argued the cause, and Carl Folsom, III, of Bell Folsom, P.A., of Lawrence, was with him on the brief for appellee.

The opinion of the court was delivered by BEIER, J.:

In this interlocutory appeal, the State challenges the district judge's suppression of evidence derived from a wiretap. We transferred the case from the Court of Appeals on our own motion and now affirm.

Factual and Procedural Background

This case began December 10, 2009, when then Attorney General Steve Six signed the following written delegation of authority to then Assistant Attorney General Barry Disney:

“I, Steve Six, the duly elected Attorney General of the State of Kansas, do hereby delegate the authority to exercise the power of the Attorney General to make application for ex parte orders authorizing the interception of wire, oral or electronic communication pursuant to K.S.A. 22–2515, et seq. to Barry Disney, Assistant Attorney General.

“This delegation of authority to exercise the power of the Attorney General to make application for ex parte orders authorizing the interception of wire, oral or electronic communication is made under the authority of K.S.A. 75–710 and shall remain in effect until revoked by me in writing.”

Less than 3 weeks later, Disney appeared before District Court Judge Cheryl Rios Kingfisher in Shawnee County “for Attorney General Steve Six ... pursuant to K.S.A. 75–710” and applied “for an order authorizing interception of wire communications and electronic communications pursuant to K.S.A. 22–2516.” The wiretap was to assist in a drug investigation, and the application was based on information provided by a Kansas Bureau of Investigation special agent. Judge Kingfisher issued an order authorizing the requested interception.

The investigation led to this prosecution of defendant Charles Elmer Bruce, Jr., in Neosho County on one count of conspiracy to manufacture methamphetamine and one count of possession of pseudoephedrine. Bruce sought suppression of all evidence derived from the wiretap, arguing that the order was unlawful.

According to Bruce's motion to suppress, Disney was not “within the class of persons designated by the legislature to apply for an eavesdropping or intercepting order,” because “K.S.A. 22–2515 does not allow an assistant attorney general to make such an application.” Bruce cited State v. Farha, 218 Kan. 394, 544 P.2d 341 (1975), cert. denied426 U.S. 949, 96 S.Ct. 3170, 49 L.Ed.2d 1186 (1976), and In re Olander, 213 Kan. 282, 515 P.2d 1211 (1973); and he argued that application of K.S.A. 2011 Supp. 75–710 to broaden an assistant attorney general's authority under K.S.A. 2011 Supp. 22–2515 was impermissible because of a conflict between the two statutes and legislative history pointing to a contrary intention. Bruce also asserted that the Kansas statutory scheme for authorizing wiretaps could not be more permissive than the federal scheme, Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2515 (2006)et seq. Finally, he argued that admissibility of the wiretap evidence could not be saved by the good-faith exception to the exclusionary rule under United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), because suppression was required by wiretap-specific statutes.

At the time, the State argued in response that K.S.A. 2011 Supp. 75–710 permitted the attorney general to specially designate an assistant attorney general to apply for a wiretap order. The State also argued that the cases relied upon by Bruce dealt specifically with the validity of a prior version of the Kansas statute, see K.S.A. 1972 Supp. 22–2513 (repealed 1974), and did not control the interpretation of the current interaction between K.S.A. 2011 Supp. 75–710 and K.S.A. 2011 Supp. 22–2515. The State also relied on decisions from the federal courts and other state courts that interpreted 18 U.S.C. § 2516(2) (2006) to permit delegation under certain circumstances. In its view, the Kansas statutory scheme was not too permissive to pass muster when compared with its federal counterpart. Finally, the State sought to rely on the Leon good-faith exception.

District Court Judge Timothy E. Brazil held two hearings on Bruce's suppression motion. At one of the hearings, Six and Disney testified about the procedure they followed on the delegation and the wiretap application. After briefing and argument, Judge Brazil suppressed the wiretap evidence, holding that “K.S.A. 75–710 does not amend or expand the powers granted to the attorney general pursuant to K.S.A. 22–2515(a)” and that “K.S.A. 75–710 [,] as applied with K.S.A. 22–2515[,] is more permissive than 18 U.S.C. 2516(2)[;] therefore, the application and order authorizing interception are fatally defective and the evidence thereby was unlawfully intercepted.”

This interlocutory appeal and transfer from the Court of Appeals followed.

Analysis

The standard of review for the interpretation of Kansas statutes is well known. See State v. Roberts, 293 Kan. 29, 33, 259 P.3d 691 (2011) (unlimited review); State v. Arnett, 290 Kan. 41, Syl. ¶ 1, 223 P.3d 780 (2010) (intent of legislature governs; no statutory construction necessary if language of statute plain and unambiguous; if language ambiguous, court may construe statute by consulting legislative history, canons of construction, other background considerations that shed light on statute's purpose). Our approach to the interpretation of federal statutes is the same, in the absence of an “otherwise binding court ruling.” Purvis v. Williams, 276 Kan. 182, 187, 73 P.3d 740 (2003); see In re M.F., 290 Kan. 142, 150–51, 225 P.3d 1177 (2010). Because of the risk wiretaps pose to personal privacy, authorizing statutes must be strictly construed. Olander, 213 Kan. at 287, 515 P.2d 1211.

In addition, when reviewing a ruling on a motion to suppress evidence,

“this court generally reviews the factual findings underlying the district court's suppression decision by a substantial competent evidence standard and the ultimate legal conclusion drawn from those factual findings by a de novo standard. The court does not reweigh the evidence. [Citation omitted.] When the parties do not dispute the material facts, however, the suppression question is solely one of law. [Citation omitted.]” State v. Coleman, 292 Kan. 813, 817, 257 P.3d 320 (2011).

See State v. Johnson, 293 Kan. 1, 4, 259 P.3d 719 (2011).

At oral argument before this court, counsel for the State suggested that analysis of this case should ask and answer three questions: First, has defendant Bruce established a violation of federal wiretap law? Second, did any violation run afoul of a provision intended to play a central role in the statutory scheme? And, third, if the provision was intended to play a central role, was its purpose achieved in spite of the violation and thus the violation harmless?

We agree that asking and answering these questions is exactly what is called for here.

The State conceded at oral argument that the answer to each of the first two questions was “yes.” In other words, there has been a violation of federal wiretap law, and the violation implicated a provision intended to play a central role in the statutory scheme. Given these concessions, we do not engage in an extensive discussion on these two points.

On the third question, the State asserts that the delegation from Six to Disney, despite its violation of a central provision, achieved the protective purposes of the federal and state statutes, eliminating the need for suppression of the wiretap evidence. We therefore discuss at somewhat greater length the parties' contrary positions and our resolution.

We begin with a brief review of the statutes at the heart of this case, as well as our decisions in Olander and Farha.

The Statutes and Our Cases

Applications for wiretaps in the Kansas court system are subject to both 18 U.S.C § 2515 et seq. and Kansas wiretap statutes that largely mirror the federal provisions.

Under the federal statute,

“[w]henever any wire or oral 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 ... in or before any court ... or other authority of the United States, a State, or a political subdivision thereof if the disclosure of that information would be in violation of this chapter.” 18 U.S.C. § 2515 (2006).

Kansas statutes contain the same suppression requirement when wiretap evidence has been obtained in violation of explicit safeguards. See K.S.A. 22–2517.

Both the federal and state statutes also provide for motions to suppress wiretap evidence in certain circumstances. The federal statute states:

“Any aggrieved person in any trial, hearing, or proceeding in or before any court, department, officer, agency, regulatory body, or other authority of the United States, a State, or a political subdivision thereof, may move to suppress the contents of any wire or oral communication intercepted pursuant to this chapter, or evidence derived therefrom, on the grounds that—

(i) The communication was unlawfully intercepted;

(ii) the...