State v. Farha

• Decision Date: 13 December 1975
• Docket Number: No. 47839,47839
• Citation: 544 P.2d 341,218 Kan. 394
• Parties: STATE of Kansas, Appellant, v. Hal FARHA et al., Appellees. STATE of Kansas, Appellant, v. Joan SOLLS et al., Appellees.
• Court: Kansas Supreme Court

Page 341

544 P.2d 341

218 Kan. 394

STATE of Kansas, Appellant, v. Hal FARHA et al., Appellees.

STATE of Kansas, Appellant, v. Joan SOLLS et al., Appellees.

No. 47839.

Supreme Court of Kansas.

Dec. 13, 1975.

Syllabus by the Court

1. Constitutional principles and rules relating to the interaction between federal and state statutes applicable to wiretapping or electronic surveillance are stated and applied.

2. In an appeal by the state from an order suppressing evidence obtained by electronic search warrants, it is held:

(a) K.S.A.1971 Supp. 22-2513(1) (now repealed), providing a procedure for obtaining eavesdropping orders, was more permissive than 18 U.S.Code § 2516(2) in that it purported to authorize an assistant attorney general to make application for a wiretap order and therefore was invalid as in conflict with the federal act.

(b) The provisions of K.S.A.1971 Supp. 22-2513 (now repealed) were violative of the right of privacy guaranteed by the fourth amendment to the federal constitution and were in conflict as well with certain sections of 18 U.S.Cocd §§ 2510-2520, as stated in the opinion.

(c) Pursuant to the provisions of 18 U.S.Code § 2515 evidence derived from communications obtained in a prior illegal electronic surveillance must be suppressed unless such derivative evidence is based on an independent source untainted by the illegally obtained communications.

(d) The trial court did not err in suppressing the evidence obtained by the electronic search warrants.

Keith Sanborn, Dist. Atty., argued the cause, and Curt T. Schneider, Atty. Gen., and Robert Kennedy, Jr., Asst. Dist. Atty., were with him on the brief for appellant.

Jack Focht, of Smith, Shay, Farmer & Wetta, Wichita, argued the cause, and Harold Irwin, Wichita, was with him on the brief for appellees Hal Farha, Gerald Farha and Phil Razook.

Stephen Jones, of Hershberger, Patterson, Jones & Roth, Wichita, argued the cause, and William L. Oliver, Jr., of Martin, Pringle, Schell & Fair, Wichita, was with him on the brief for appellees John D. Knightley, Jr. and Jamie Thompson.

F. C. McMaster, of McMaster & Smith, Wichita, argued the cause and was on the brief for appellee Joan Solls.

Everett C. Fettis, of Fettis, Quinn & Beasley, Wichita, was on the brief for appellees Grant Parsons and Russell Adams.

Harry L. Najim, of Wichita, entered his appearance for appellee Herbert Cohlmia.

HARMAN, Commissioner:

This interlocutory appeal by the state seeks to vacate an order suppressing evidence obtained by electronic search warrants. Defendants in the case are charged with numerous counts of commercial gambling (K.S.A. 21-4304) and conspiracy to commit commercial gambling (K.S.A. 21-3302).

All but one of the electronic search warrants were issued purjsuant to K.S.A.1971 Supp. 22-2513 (repealed and superseded effective July 1, 1974). The defendants contended this statute was unconstitutional on its face and also invalid because it did not comply with standards for electronic surveillance established by federal statutes. The trial court agreed. It further ruled that the evidence obtained in the last warrant, issued pursuant to our present statutes on electronic surveillance and whose validity has not been challenged, was 'fatally tainted' by the prior illegally obtained evidence and must also be suppressed. In all, five electronic search warrants and three extension orders were issued between October 24, 1972, and July 2, 1974. Pertinent facts may be stated in three chronological groups: (1) Warrants obtained in Shawnee county pursuant to our former statute; (2) those obtained in Sedgwick county pursuant to the same law; and (3) one obtained in Sedgwick county pursuant to our present law (K.S.A. 22-2514 to 22-2519 (Weeks 1974)).

1. Shawnee county warrants-K.S.A. 1971 Supp. 22-2513

In October, 1972, Mr. Patrick Connolly, assistant attorney general in charge of the criminal division of the Kansas attorney general's office, received information from two special agents of the Kansas bureau of investigation concerning commercial gambling activities (bookmating on sporting events) of defendant Hal Farha in Wichita. A confidential informant, who had given reliable information in the past, had placed bets with Mr. Farha by telephone in the presence of a KBI agent, which were tape recorded with the consent of the informant. As revealed by an affidavit dated March 21, 1975, Mr. Connolly outlined to the then attorney general the evidence developed in the investigation and received his authorization to apply for an electronic search warrant to tap Mr. Farha's telephone lines. Mr. Connolly then prepared an application and on October 24, 1972, presented it to the Honorable Adrian J. Allen, judge of division No. 4 of the Shawnee county district court.

Two KBI agents, who had actively participated in the investigation, testified and a recorded wagering transaction with defendant Hal Farha was played for the court. The court found that probable cause existed to issue the warrant. The order for an electronic search warrant was for a period of ten days. On November 2, 1972, again after reviewing information obtained with the attorney general and receiving his authorization, Mr. Connolly applied to Judge Allen for two orders. One application was for an extension of the October 24th order and also for authority to intercept an additional telephone number obtained under the first wiretap order. The other was for authorization to intercept and record conversations on telephone numbers belonging to defendant Gerald Farha. The court examined witnesses regarding the progress of the interceptions and results obtained, found that probable cause existed for an extension of the original order and the addition of new numbers and also for the interception and recording of Gerald Farha's communications. Both orders were for a ten day period.

As a result of evidence secured from these interceptions search warrants were issued under which searches and arrests were made on December 1 and 2, 1972, at the defendants Farhas' business establishments in Wichita. Physical evidence was seized, witnesses were interviewed and commercial gambling and conspiracy informations were filed against the two Farhas on December 1, 1972. Inventories of intercepted materials were filed with the court on December 20, 1972, and served on the Farhas at that time. No other notices of intercepted conversations were ever filed or served upon any other parties to this action nor was any request for determination of persons who should be served with inventories ever made to the district court of Shawnee county or of Sedgwick county.

2. Sedgwick county warrants-K.S.A. 1971 Supp. 22-2513

Independently of the foregoing, in October, 1973, Mr. Reese Jones, assistant district attorney of Sedgwick county, received an anonymous phone call informing him that defendant Joan Solls was taking bets and that a bet could be placed with her by calling one of two named telephone numbers and by stating that the caller had been referred by a certain named person. In addition, Detective Beverly Artman of the Wichita police department received a call informing him of the bookmaking activities of defendant Frederick 'Mo' Melzer and his 'partner' Joan Solls. Detective Artman and certain KBI agents then conducted extensive physical surveillance of both Solls and Melzer and observed several suspected gambling transactions. Details of this investigation were discussed with Mr. Keith Sanborn, district attorney of Sedgwick county, and on December 13, 1973, he made application to the Honorable David P. Calvert, judge of division No. 9 of the district court of Sedgwick county, for an electronic search warrant for the telephones of Joan Solls, used by her and defendant Melzer. After examining sworn witnesses and the district attorney's verified application the court found there was probable cause to issue the warrant, no other means were available to obtain the evidence sought, that probable cause established that a continuing crime was being committed. A warrant was issued and the court ordered that the surveillance not be terminated when the first conversation was seized.

This warrant produced evidence of commercial gambling and conspiracy to commit that crime. A ten day extension of it was sought and granted on December 19, 1973, after another evidentiary hearing held before Judge Calvert. Interceptions under the December 13th order and its extension disclosed gambling activities on the part of Solls and Melzer and of defendant Russell Adams.

On January 9, 1974, the district attorney made an application to Judge Calvert for an electronic search warrant for communications of defendant Adams. After an evidentiary hearing a warrant was issued. On January 19, 1974, Judge Calvert extended this order for a ten day period.

3. Sedgwick county warrant-K.S.A 22-2514 to 22-2519 (Weeks 1974)

In June, 1974, and FBI agent observed a man, identified to him as Phil Razook, engaged in bookmaking activities at a private club in Wichita. He informed another FBI agent of this and the latter in turn observed Razook making and transmitting bets over a pay phone at the club. Detective Artman and two other police officers, through numerous observations, were able to ascertain that the numbers Razook was calling were listed to defendant Hal Farha. Their physical surveillance also revealed that Razook met often with Farha and Melzer. Armed with this and other information to be mentioned later, Mr. Sanborn on July 2, 1974, made application to Judge Calvert for an electronic search warrant against the defendants Razook, Melzer and Hal Farha. (Meanwhile, on July 1, a new Kansas statute governing electronic surveillance, now K.S.A. 22-2514 to 22-2519 (Weeks 1974) became effective. It repealed and superseded 22-2513 and essentially follows the provisions of Title III of the Omnibus Crime control and Safe Streets Act of 1968 (U.S.C. §§...