State v. Crouch, 53534

• Decision Date: 27 February 1982
• Docket Number: No. 53534,53534
• Citation: 230 Kan. 783,641 P.2d 394
• Court: Kansas Supreme Court
• Parties: STATE of Kansas, Appellant, v. Bryan Lee CROUCH, and Gregory Allen Reeder, Appellees.

Page 394

641 P.2d 394

230 Kan. 783

STATE of Kansas, Appellant, v. Bryan Lee CROUCH, and Gregory Allen Reeder, Appellees.

No. 53534.

Supreme Court of Kansas.

Feb. 27, 1982.

Syllabus by the Court

1. The purpose of K.S.A. 22-2901(1), which requires a person arrested for a crime to be taken without unnecessary delay before a magistrate, is to safeguard individual rights without hampering effective and intelligent law enforcement.

2. Undue delay in bringing one accused of crime before a magistrate is not, of itself, a denial of due process. It is only where a preliminary delay in some way deprives an accused of a fair trial that there can be a denial of due process.

3. Where a trial court finds that K.S.A. 22-2901 has been violated, it has the power to dismiss a criminal complaint with prejudice, if the interests of justice require such action. Such power should be exercised, however, with great caution and only in cases where no other remedy would protect against abuse.

David R. Platt, Asst. County Atty., argued the cause, and Robert T. Stephan, Atty. Gen., and Steven L. Opat, County Atty., were with him on the brief for the appellant.

David P. Troup, of Weary, Davis, Henry, Struebing & Troup, Junction City, argued the cause and was on the brief for the appellee, Bryan Lee Crouch.

Chris McNeil, Junction City, argued the cause and was on the brief for the appellee, Gregory Allen Reeder.

PRAGER, Justice:

This is an appeal by the State from orders dismissing a criminal complaint previously filed against the defendants, Bryan Lee Crouch and Gregory Allen Reeder, because the State did not comply with the provisions of K.S.A. 22-2901, by failing to take the defendants before a magistrate until eleven days after their arrest.

For purposes of this appeal, the facts are undisputed and are as follows: On July 2, 1981, an automobile was stolen from a parking lot in Junction City. Its description was broadcast to police officers in the area. On July 3, 1981, the car was discovered, in the possession of defendants, being repainted by the defendants. The police officers made a probable cause arrest, and the defendants were taken to and incarcerated in the Junction City jail. On July 6, 1981, the next working day, bond was set by the court for defendants at the request of the State. However, defendants were never notified that bond had been set. On July 10, 1981, a formal complaint was filed charging each of the defendants with felony theft (K.S.A. 21-3701). Defendants continued to languish in jail and were finally brought before the district court for first appearance on July 14, 1981. At that time, counsel was appointed for each of the defendants and a date was set for the preliminary hearing.

The Eighth Judicial District, of which Geary County is a part, has six judges, two of whom reside in Geary County. There was at least one judge assigned for duty and available to handle first appearances on July 6th through the 10th and on July 13th. At the first appearance on July 14, counsel was appointed. Each of the defendants was released on bond on July 17, 1981. Counsel for each of the defendants then filed a motion to dismiss the complaint with prejudice based on the failure of the State to bring defendants before a magistrate until eleven days after they were arrested. The trial judge sustained each motion and dismissed the complaint with prejudice as to each defendant. In each instance, the trial court found that the defendant had been prejudiced by the delay in bringing that defendant before a magistrate. The trial court stated in the record, in substance, that being kept in jail for eleven days without being brought before a magistrate has to weaken the resolve of the defendant and is in direct violation of K.S.A. 22-2901 and that holding the defendant that long without an appearance before the court is in itself prejudice. The court, at the time it dismissed the complaint with prejudice as to the defendant, Crouch, stated on the record that an additional reason for the court's decision was that the keeping of the defendant in jail eleven days before bringing him before a magistrate constituted intimidation and cruel and unusual punishment. The State promptly filed an appeal from the orders dismissing the complaint with prejudice as to each defendant.

The sole issue stated by the State on appeal is whether the incarceration of the defendants for eleven days from date of arrest to their first appearance before a magistrate resulted in such prejudice to their statutory and constitutional rights that it warranted the dismissal with prejudice of the charges against them. The issue raised requires the court to interpret the effect of K.S.A. 22-2901 which provides in pertinent part as follows:

"22-2901. Appearance before the magistrate. (1) When an arrest is made in the county where the crime charged is alleged to have been committed, the person arrested shall be taken without unnecessary delay before a magistrate of the court from which the warrant was issued. If the arrest has been made on probable cause, without a warrant, he shall be taken without unnecessary delay before the nearest available magistrate and a complaint shall be filed forthwith.

"(2) When an arrest is made in a county other than where the crime charged is alleged to have been committed, the person arrested may be taken directly to the county wherein the crime is alleged to have been committed without unnecessary delay or at the request of the defendant he shall be taken without unnecessary delay before the nearest available magistrate. Such magistrate shall ascertain the nature of the crime charged in the warrant and the amount of the bond, if any, endorsed on the warrant. If no warrant for the arrest of the person is before the magistrate he shall make use of telephonic, telegraphic or radio communication to ascertain the nature of the charge and the substance of any warrant that has been issued. If no warrant has been issued, a complaint shall be filed and a warrant issued in the county where the crime is alleged to have been committed, and the nature of the charge, the substance of the warrant, and the amount of the bond shall be communicated to the magistrate before whom the defendant is in custody. Upon receipt of such information, the magistrate shall proceed as hereinafter provided.

"(3) The magistrate shall fix the terms and conditions of the appearance bond upon which the defendant may be released. If the first appearance is before a magistrate in a county other than where the crime is alleged to have been committed, the magistrate may release the defendant on an appearance bond in an amount not less than that endorsed on the warrant. The defendant shall be required to appear before the magistrate who issued the warrant or a magistrate of a court having jurisdiction on a day certain, not more than 10 days thereafter."

It should be noted that K.S.A. 22-2901 provides no sanctions in the event there is unnecessary delay in taking a person under arrest before the nearest available magistrate. K.S.A. 22-2901 is patterned after similar provisions found in Rule 5 of the Federal Rules of Criminal Procedure (18 U.S.C.A. Rule 5) and in statutes adopted in other states. There are many cases which hold that the purpose of requiring a person under arrest to be taken to a magistrate without unnecessary delay is to safeguard individual rights without hampering effective and intelligent law enforcement. See Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479 (1957), which discusses Rules 4 and 5 of the Federal Rules of Criminal Procedure; State v. Steeves, 279 Minn. 298, 157 N.W.2d 67 (1968); 21 Am.Jur.2d, Criminal Law § 408, pp. 677-79. It has also been stated that the purpose of the rule is to abolish unlawful detention that provides an opportunity for improper pressure by the police before the arrestee has been informed of his rights. United States v. Carignan, 342 U.S. 36, 72 S.Ct. 97, 96 L.Ed. 48 (1951). It is designed to reduce the opportunity for third-degree practices by the police and to protect the rights of the accused by making certain that he is advised of his constitutional rights by a judicial officer. United States v. Mendoza, 473 F.2d 697 (5th Cir. 1973); United States v. Middleton, 344 F.2d 78 (2d Cir. 1965); Naples v. United States, 307 F.2d 618 (D.C.Cir.1962); Wheeler v. United States, 382 F.2d 998 (10th Cir. 1967). The reason for the rule is also discussed in McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819 (1943), where Justice Frankfurter states that such statutory provisions constitute an important safeguard, not only in assuring protection for the innocent, but also in securing conviction of the guilty by methods that commend themselves to a progressive and self-confident society. They aim to avoid the evil implications of secret interrogation of persons accused of crime.

This court has heretofore considered the requirements of K.S.A. 22-2901 in situations where there were delays ranging from forty-two hours to thirteen days in bringing an arrested person before a magistrate. In State v. Goodseal, 220 Kan. 487, 500, 553 P.2d 279 (1976), it was held that unwarranted delay in taking a prisoner before a magistrate after he has been arrested is not in itself a denial of due process unless it has in some way prejudiced the right of the accused to a fair...